Optional Increase. (a) The Company may, at any time or times during the term of this Agreement, by written notice in the form of Exhibit J to the Administrative Agent, make one or more requests that the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of such notice; provided, however, that (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (ii) the Company shall be in compliance with all financial covenants set forth in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the Commitment Increase was outstanding for the entire such period). (b) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified by the Company and reasonably acceptable to the Administrative Agent (each such financial institution that is not a Lender, a "Proposed New Lender")) of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date. (c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent. (d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate. (e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date: (i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase; (ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and (iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J. (f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 2 contracts
Samples: Credit Agreement (Del Monte Foods Co), Credit Agreement (Del Monte Foods Co)
Optional Increase. (ai) The Company On the terms and subject to the conditions set forth below, Borrowers may, at any time or times during before the term of this AgreementMaturity Date, by written notice in increase the form of Exhibit J Total Revolving Loan Commitment; provided that:
(A) after giving effect to the Administrative Agentrequested increase, make one or more requests that the aggregate amount of the increases in the Total Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) Loan Commitment following the Fourth Amendment Effective Date shall not to exceed $100,000,000 250,000,000;
(each, a "Commitment Increase"), with any such Commitment Increase to B) there shall be effective as of a date (the "Increase Date") specified no more than five increases in the related notice Total Revolving Loan Commitment pursuant to the Administrative Agent that is at least 30 Business Days after this Section 2.1(c);
(C) prior to the date of any proposed increase, the Total Revolving Loan Commitment shall not have been decreased pursuant to Section 2.6(c);
(D) each such notice; provided, however, that increase in the Total Revolving Loan Commitment shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iE) no Event of Default or Unmatured Event of Default shall have occurred and be continuing or shall occur as a result of such increase;
(F) at the time of and immediately after giving effect to such increase, the representations and warranties of the Borrowers set forth in this Agreement are true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date (unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such specified earlier date; and
(G) the Borrowers shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Total Revolving Loan Commitment (including new or amended Notes, any related fee letters, documents evidencing the increased Revolving Loan Commitment held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Total Revolving Loan Commitment and related actions taken by the Borrowers, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.1(c) shall be submitted by the Borrowers to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in connection with such increase, the Administrative Agent (with the consent of Borrowers) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Revolving Loan Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Loan Commitment; no Lender that is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Revolving Loan Commitment. Only the consent of each Increasing Lender shall be required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this Section 2.1(c)(i). No Lender which elects not to increase the amount of its Revolving Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment as a result thereof without such Lender’s written consent.
(ii) Each Increasing Lender shall, as soon as practicable after the Company shall be in compliance with all financial covenants set forth in Sections 8.11Borrowers have submitted their request under Section 2.1(c)(i), 8.12, 8.13 and 8.14 on a pro forma basis for specify the period of four consecutive fiscal quarters ending on the last day amount of the last completed fiscal quarter immediately preceding proposed increase in its Revolving Loan Commitment which it is willing to offer. To the date extent the increased Revolving Loan Commitment Increase of the Increasing Lenders is proposed insufficient or there are no Increasing Lenders, the Borrowers may designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to become effective the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.1(c)(ii) (on each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the assumption that increase in the full amount of Indebtedness represented by the Total Revolving Loan Commitment. The Borrowers and the Administrative Agent shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Total Revolving Loan Commitment Increase was outstanding for the entire such period)among Increasing Lenders and New Lenders.
(biii) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified Each New Lender designated by the Company Borrowers and reasonably acceptable to the Administrative Agent (each such financial institution that is not shall become an additional party hereto as a Lender, a "Proposed New Lender")) Lender concurrently with the effectiveness of the request proposed increase in the amount of the Total Revolving Loan Commitment upon its execution of an instrument of joinder (which may contain such modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that such Revolving Loan Commitments are treated as Revolving Loan Commitments for all purposes under the Loan Documents), in each case prepared by the Company for Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent. Each New Lender shall provide the documentation required by Section 2.14(e).
(iv) Subject to the foregoing, any increase in the Total Revolving Loan Commitment Increase, which notice requested by the Borrowers shall include be effective as of the date proposed by the Borrowers (the “Increase Effective Date”) and shall be in the principal amount equal to (A) the proposed amount which the Increasing Lenders are willing to assume as increases to the amount of the requested Commitment Increase, their Revolving Loan Commitments plus (B) the proposed Increase Date and (C) amount offered by the date by which Lenders and Proposed New Lenders wishing with respect to participate the Total Revolving Loan Commitment, in either case as adjusted by the Commitment Increase must commit Borrowers and the Administrative Agent pursuant to participate in such Commitment Increase the last sentence of Section 2.1(c)(ii).
(the "Commitment Date"), which date shall be no later than five Business Days v) On or prior to the Increase Effective Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increaseincrease in the Total Revolving Loan Commitment, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Revolving Loan Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.1(c)(ii)); provided. Each Lender that is required to reduce the amount of Revolving Loans held by it (each such Lender, howevera “Decreasing Lender”) shall irrevocably assign, that without recourse or warranty of any kind whatsoever, to each Increasing Lender and New Lender participating in the Administrative Agent applicable increase in the Total Revolving Loan Commitment, and each applicable Increasing Lender and New Lender shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result irrevocably acquire from the Commitment IncreaseDecreasing Lenders, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, a portion of the principal amount of the Term Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding plus on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal Loans made on such date) in an amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so such that such amount is not less than the principal amount of the Term Revolving Loans held by each applicable Increasing Lender, New Lender and Decreasing Lender as of the Increase Effective Date shall be held in accordance with each such Lender’s Revolving Commitments, after giving effect to Proportionate Share (if any) as of such Commitment Increase, together with such endorsements date. Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the related title insurance policies held Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion (without payment of the fee required by Section 9.4(d)), which amount shall be allocated and paid by the Administrative Agent as in dollars by wire transfer of immediately available funds at or before 12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with Lenders shall adjust its records accordingly to reflect the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender payment of the increase Acquired Portion. The payments to be made in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment respect of the conditions set forth in subsection 2.16(e), Acquired Portion shall be made by the Administrative Agent shall notify the applicable Increasing Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in Dollars in immediately available funds, (A) in funds at or before 11:00 a.m. on the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving CommitmentsIncrease Effective Date, such payments to be made by the applicable Increasing Lenders and New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in Lenders pro rata based upon the case of the creation of Term Commitments, respective increases in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loan Commitments held by such Lenders on the excess Increase Effective Date.
(vi) To the extent any of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all the Revolving Loans then outstanding over (2acquired by the applicable Increasing Lenders and New Lenders from the Decreasing Lenders pursuant to Section 2.1(c)(v) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving above are LIBOR Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such LIBOR Loans, the Decreasing Lenders shall be entitled to compensation from the Borrowers as provided in Section 2.13 (as if Borrowers had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fIncrease Effective Date), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Optional Increase. (a) The Company At any time prior to the Termination Date, Altria may, at any time or times during on the term of this Agreementterms set forth below, by written notice in the form of Exhibit J to the Administrative Agent, make one or more requests request that the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of such notice; provided, however, that (i) an increase in the Commitments hereunder may only be made at a time when no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (ii) in no event shall the Company shall be total aggregate Commitments hereunder and commitments under the 364-Day Facility exceed $3,000,000,000. In the event of such a requested increase in compliance with all the Commitments, any Lender or other financial covenants set forth in Sections 8.11institution which Altria and JPMCB, 8.12as Administrative Agent, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed invite to become effective (on a Lender or to increase its Commitment may set the assumption that the full amount of Indebtedness represented its Commitment at a level agreed to by Altria and JPMCB, as Administrative Agent. In the Commitment Increase was outstanding for the entire such period).
(b) The Administrative Agent shall promptly notify event that Altria and one or more of the Lenders (or other financial institutions) shall agree upon such an increase in the Commitments (i) Altria, JPMCB, as well as any Administrative Agent, and each Lender or other financial institution specified by increasing its Commitment or extending a new Commitment shall enter into a supplement to this Agreement (each, a “Lender Supplement”) substantially in the Company form of Exhibit F, setting forth, among other things, the amount of the increased Commitment of such Lender or the new Commitment of such other financial institution, as applicable, and reasonably acceptable (ii) Altria shall furnish, if requested, new or amended and restated Notes (following receipt of canceled Notes), as applicable, to the Administrative Agent (each such financial institution that is not extending a Lender, a "Proposed New Lender")) of the request by the Company for the new Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New each Lender that is willing to participate in increasing its Commitment. No such Lender Supplement shall require the approval or consent of any Lender other than the Lender whose Commitment Increase (each, an "Increasing Lender") shall give written notice to is being increased. Upon the Administrative Agent no later than 10:00 a.m. (San Francisco time) on execution and delivery of such Lender Supplements as provided above and the Commitment Date occurrence of the amount by which it is willing to participate in such Commitment Increase“Effective Date” specified therein, which amount shall not exceed and upon JPMCB, as Administrative Agent, administering the amount reallocation of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated Revolving Credit Advances ratably among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to each such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) Agreement shall be deemed to be funded at the applicable Offshore Rate for such Borrowingamended accordingly.
Appears in 1 contract
Optional Increase. (a) The Company mayProvided that no Default or Event ----------------- of Default then exists, at SIHL may on any Business Day prior to the Commitment Termination Date, request from time or times during to time in writing that the term of then effective Commitment Amount be increased by an aggregate amount not to exceed $150,000,000. Any request under this Agreement, Section to increase the Commitment Amount shall be submitted by written notice in the form of Exhibit J Borrowers to the Administrative Agent, make one or more requests that specify the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be proposed effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days which date shall be not less than 5 days after the date of such notice; provided, however, that request) and specify the amount of such increase (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (ii) the Company which shall be in compliance with all financial covenants set forth in Sections 8.11integral multiples of $1,000,000). No Lender shall have any obligation, 8.12express or implied, 8.13 and 8.14 on a pro forma basis for to offer to increase its Commitment. Only the period of four consecutive fiscal quarters ending on the last day consent of the last completed fiscal quarter immediately preceding Administrative Agent (which consent shall not be unreasonably withheld) and those Lenders agreeing to increase their Commitments (the date "Increasing Lenders") shall be required for an increase in ------------------ the Commitment Increase is proposed Amount pursuant to become effective (on the assumption that the full amount of Indebtedness represented by the Commitment Increase was outstanding for the entire such period)this Section.
(b) The Administrative Agent shall promptly notify Borrowers may accept some or all of the offered amounts from the then-current Lenders (or designate new lenders which qualify as well as any other financial institution specified by the Company Eligible Assignees and are reasonably acceptable to the Administrative Agent (each such financial institution that is not a Lender, a "Proposed New Lender")) of and the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Issuer as additional Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase hereunder (each, an "Additional ----------- Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with which Additional Increasing Lenders may assume all ----------------- or a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender portion of the increase in the amount applicable Commitment Amount. The Administrative Agent and SIHL shall have discretion to adjust the allocation of its Revolving the increased Commitment or, if applicable, its Term Commitment, Amount among Increasing Lenders and Additional Increasing Lenders. Each Additional Increasing Lender shall become an additional party hereto as an Additional Increasing Lender concurrently with the effectiveness of the proposed increase in the applicable Commitment Amount upon its execution of an instrument of joinder to this Agreement which is in form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available substance reasonably acceptable to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitmentswhich, in any event, contains the amount of such New Lender's Term Commitment representations, warranties, indemnities and (B) in the case of any Increasing Lender, an amount equal other protections afforded to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to and the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such BorrowingLenders.
Appears in 1 contract
Samples: Revolving Credit Agreement (Sun International North America Inc)
Optional Increase. (ai) The Company On the terms and subject to the conditions set forth below, Borrowers may, at any time or times during before the term of this AgreementMaturity Date, by written notice in increase the form of Exhibit J Total Revolving Loan Commitment; provided that:
(A) after giving effect to the Administrative Agentrequested increase, make one or more requests that the aggregate amount of the increases in the Total Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) Loan Commitment following the Fifth Amendment Effective Date shall not to exceed $100,000,000 250,000,000;
(each, a "Commitment Increase"), with any such Commitment Increase to B) there shall be effective as of a date (the "Increase Date") specified no more than five increases in the related notice Total Revolving Loan Commitment pursuant to the Administrative Agent that is at least 30 Business Days after this Section 2.1(c);
(C) prior to the date of any proposed increase, the Total Revolving Loan Commitment shall not have been decreased pursuant to Section 2.6(c);
(D) each such notice; provided, however, that increase in the Total Revolving Loan Commitment shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iE) no Event of Default or Unmatured Event of Default shall have occurred and be continuing or shall occur as a result of such increase;
(F) at the time of and immediately after giving effect to such increase, the representations and warranties of the Borrowers set forth in this Agreement are true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date (unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such specified earlier date; and
(G) the Borrowers shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Total Revolving Loan Commitment (including new or amended Notes, any related fee letters, documents evidencing the increased Revolving Loan Commitment held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Total Revolving Loan Commitment and related actions taken by the Borrowers, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.1(c) shall be submitted by the Borrowers to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in connection with such increase, the Administrative Agent (with the consent of Borrowers) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Revolving Loan Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Loan Commitment; no Lender that is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Revolving Loan Commitment. Only the consent of each Increasing Lender shall be required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this Section 2.1(c)(i). No Lender which elects not to increase the amount of its Revolving Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment as a result thereof without such Lender’s written consent.
(ii) Each Increasing Lender shall, as soon as practicable after the Company shall be in compliance with all financial covenants set forth in Sections 8.11Borrowers have submitted their request under Section 2.1(c)(i), 8.12, 8.13 and 8.14 on a pro forma basis for specify the period of four consecutive fiscal quarters ending on the last day amount of the last completed fiscal quarter immediately preceding proposed increase in its Revolving Loan Commitment which it is willing to offer. To the date extent the increased Revolving Loan Commitment Increase of the Increasing Lenders is proposed insufficient or there are no Increasing Lenders, the Borrowers may designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to become effective the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.1(c)(ii) (on each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the assumption that increase in the full amount of Indebtedness represented by the Total Revolving Loan Commitment. The Borrowers and the Administrative Agent shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Total Revolving Loan Commitment Increase was outstanding for the entire such period)among Increasing Lenders and New Lenders.
(biii) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified Each New Lender designated by the Company Borrowers and reasonably acceptable to the Administrative Agent (each such financial institution that is not shall become an additional party hereto as a Lender, a "Proposed New Lender")) Lender concurrently with the effectiveness of the request proposed increase in the amount of the Total Revolving Loan Commitment upon its execution of an instrument of joinder (which may contain such modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that such Revolving Loan Commitments are treated as Revolving Loan Commitments for all purposes under the Loan Documents), in each case prepared by the Company for Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent. Each New Lender shall provide the documentation required by Section 2.14(e).
(iv) Subject to the foregoing, any increase in the Total Revolving Loan Commitment Increase, which notice requested by the Borrowers shall include be effective as of the date proposed by the Borrowers (the “Increase Effective Date”) and shall be in the principal amount equal to (A) the proposed amount which the Increasing Lenders are willing to assume as increases to the amount of the requested Commitment Increase, their Revolving Loan Commitments plus (B) the proposed Increase Date and (C) amount offered by the date by which Lenders and Proposed New Lenders wishing with respect to participate the Total Revolving Loan Commitment, in either case as adjusted by the Commitment Increase must commit Borrowers and the Administrative Agent pursuant to participate in such Commitment Increase the last sentence of Section 2.1(c)(ii).
(the "Commitment Date"), which date shall be no later than five Business Days v) On or prior to the Increase Effective Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increaseincrease in the Total Revolving Loan Commitment, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Revolving Loan Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.1(c)(ii)); provided. Each Lender that is required to reduce the amount of Revolving Loans held by it (each such Lender, howevera “Decreasing Lender”) shall irrevocably assign, that without recourse or warranty of any kind whatsoever, to each Increasing Lender and New Lender participating in the Administrative Agent applicable increase in the Total Revolving Loan Commitment, and each applicable Increasing Lender and New Lender shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result irrevocably acquire from the Commitment IncreaseDecreasing Lenders, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, a portion of the principal amount of the Term Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding plus on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal Loans made on such date) in an amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so such that such amount is not less than the principal amount of the Term Revolving Loans held by each applicable Increasing Lender, New Lender and Decreasing Lender as of the Increase Effective Date shall be held in accordance with each such Lender’s Revolving Commitments, after giving effect to Proportionate Share (if any) as of such Commitment Increase, together with such endorsements date. Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the related title insurance policies held Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion (without payment of the fee required by Section 9.4(d)), which amount shall be allocated and paid by the Administrative Agent as in dollars by wire transfer of immediately available funds at or before 12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with Lenders shall adjust its records accordingly to reflect the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender payment of the increase Acquired Portion. The payments to be made in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment respect of the conditions set forth in subsection 2.16(e), Acquired Portion shall be made by the Administrative Agent shall notify the applicable Increasing Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in Dollars in immediately available funds, (A) in funds at or before 11:00 a.m. on the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving CommitmentsIncrease Effective Date, such payments to be made by the applicable Increasing Lenders and New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in Lenders pro rata based upon the case of the creation of Term Commitments, respective increases in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loan Commitments held by such Lenders on the excess Increase Effective Date.
(vi) To the extent any of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all the Revolving Loans then outstanding over (2acquired by the applicable Increasing Lenders and New Lenders from the Decreasing Lenders pursuant to Section 2.1(c)(v) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving above are Eurodollar Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such Eurodollar Loans, the Decreasing Lenders shall be entitled to compensation from the Borrowers as provided in Section 2.13 (as if Borrowers had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fIncrease Effective Date), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Optional Increase. (a) The Company On the terms and subject to the conditions set forth below, the Borrower may, (x) at any time or times during before the term of this AgreementTermination Date, by written notice request an increase in the form of Exhibit J to Total Commitments (each, a “Revolving Facility Increase”) and (y) at any time before the Administrative AgentTerm Loan Maturity Date, make request one or more requests that incremental term loans (each, an “Incremental Term Loan” and all such Revolving Facility Increases, together with the initial principal amount of the Incremental Term Loans, the “Incremental Increases”); provided that:
(i) after giving effect to the requested Incremental Increase, the aggregate amount of Incremental Increases after the Revolving Commitments be increasedFirst Amendment Effective Date shall not exceed the greater of (A) 100% of EBITDA for the most recently ended four consecutive fiscal quarter period for which financial statements have been delivered pursuant to Section 6.1 and (B) an amount which, or that Commitments after giving pro forma effect to make Additional Term Loans be committed to, the incurrence of such increase (assuming such increase is funded on the effective date thereof and after giving effect to any permanent repayment of indebtedness in an aggregate amount (for all such increasesconnection therewith) would not cause the Total Leverage Ratio to exceed $100,000,000 a ratio of 0.50 to 1.00 below the Total Leverage Ratio then required pursuant to Section 7.1;
(each, a "Commitment Increase"), with any such Commitment Increase ii) all required third party consents and approvals shall have been obtained;
(iii) prior to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of any proposed Revolving Facility Increase, the Total Commitments shall not have been decreased pursuant to Section 2.6;
(iv) each such notice; provided, however, that Incremental Increase shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iv) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and or shall occur as a result of such Incremental Increase;
(iivi) the Company Borrower shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such Incremental Increases (including new or amended Notes, any related fee letters, documents evidencing the increased Commitment and/or Incremental Term Loan held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the Incremental Increase and related actions taken by the Borrower, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent);
(vii) each Incremental Increase shall constitute Obligations of the Borrower and will be guaranteed by the Subsidiary Guarantors on a pari passu basis with the other Obligations; and
(viii) with respect to any Incremental Term Loan:
(1) the maturity date and principal amortization for each Incremental Term Loan shall be in compliance with all financial covenants set forth in Sections 8.11determined by the applicable Lenders providing such Incremental Term Loan and the Borrower on the applicable Increase Effective Date; provided that no Incremental Term Loan will have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date;
(2) the Applicable Margin and pricing grid, 8.12if applicable, 8.13 for each Incremental Term Loan shall be determined by the applicable Lenders providing such Incremental Term Loan and 8.14 the Borrower on a pro forma basis the applicable Increase Effective Date; provided that if the Applicable Margin for an Incremental Term Loan exceeds that for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented existing Term Loans by the Commitment Increase was outstanding for the entire more than 0.50% per annum, then such period).
(b) The Administrative Agent Applicable Margin shall promptly notify the Lenders (as well as any other financial institution specified by the Company and be reasonably acceptable to the Administrative Agent Agent; and
(each such financial institution that is not a Lender3) except as provided in this Section 2.19, a "Proposed New Lender")) of all other terms and conditions applicable to any Incremental Term Loan shall be consistent with the terms and conditions applicable to the Initial Term Loan. Any request under this Section 2.19 shall be submitted by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice Borrower to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on which shall promptly forward copies to the Commitment Date of Lenders), specify the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the proposed effective date and amount of the requested Commitment Increase. It shall such increase and be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments accompanied by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event Default exists or will occur as a result of Default such Incremental Increase. If any fees are to be paid or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request offered in connection with the Commitment such Incremental Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify (with the consent of Borrower) may also specify any fees offered to those Lenders and (the Company“Increasing Lenders”) which agree to provide such Incremental Increase, on or before 1:00 p.m. (San Francisco time) which fees may be variable based upon the amount by facsimile of the occurrence of the Commitment Increase which any such Lender is willing to be effected on commit to such Increase Date. Each Incremental Increase; no Lender which is not an Increasing Lender and each New shall be entitled to receive any such fees. No Lender shallshall have any obligation, before 2:00 p.m. (San Francisco time) on the applicable Increase Dateexpress or implied, make available to the Administrative Agent in immediately available funds, (A) in the case of offer to provide any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount portion of such New Lender's Term Commitment and (B) in Incremental Increase. Only the case consent of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause shall be required for an Incremental Increase pursuant to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increasethis Section 2.19(a). If No Lender which elects not to provide any portion of an Incremental Increase Date shall occur on a date that is not the last day may be replaced in respect of the Interest Period for all Revolving its existing Commitment and/or outstanding Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for thereof without such BorrowingLender’s written consent.
Appears in 1 contract
Samples: Credit Agreement (Fair Isaac Corp)
Optional Increase. (a) The Company may, at any time or times during the term of this Agreement, by written notice in the form of Exhibit J to the Administrative Agent, make one or more requests Borrowers may request that the aggregate amount of the Revolving Commitments Credit Aggregate Commitment be increased, or that Commitments to make Additional Term Loans be committed to, increased in an aggregate amount (for all such increasesrequests under this Section 2.13) not to exceed $100,000,000 (eachthe Revolving Credit Optional Increase Amount, a "Commitment Increase")subject, with any such Commitment Increase in each case, to be effective as of a date (the "Increase Date") specified in the related notice Section 11.1 hereof and to the Administrative Agent that is at least 30 Business Days after satisfaction concurrently with or prior to the date of each such noticerequest of the following conditions:
(a) Borrowers shall have delivered to the Agent a written request for such increase, specifying the amount of the requested increase (each such request, a “Request for Revolving Credit Increase”); provided, however, that in the event Borrowers previously delivered a Request for Revolving Credit Increase pursuant to this Section 2.13, Borrowers may not deliver a subsequent Request for Revolving Credit Increase until all the conditions to effectiveness of such first Request for Revolving Credit Increase have been fully satisfied (or such Request for Revolving Credit Increase has been withdrawn); and provided further that (i) the Borrowers may make no Event more than two (2) Requests for Revolving Credit Increase and (ii) no Request for Increase may be made within three (3) months of the Revolving Credit Maturity Date, except in each case with the consent of the Agent which consent shall not unreasonably be withheld;
(b) within three (3) Business Days after the Agent's receipt of the Request for Revolving Credit Increase, the Agent shall inform each Revolving Credit Lender of the requested increase in the Revolving Credit Aggregate Commitment, offer each Revolving Credit Lender the opportunity to increase its Commitment in an amount equal to its applicable Revolving Credit Percentage of the requested increase in the Revolving Credit Aggregate Commitment, and request each such Revolving Credit Lender to notify the Agent in writing whether such Revolving Credit Lender desires to increase its applicable commitment by the requested amount. Each Revolving Credit Lender approving an increase in its applicable commitment by the requested amount shall deliver its written consent thereto no later than ten (10) Business Days of the Agent's informing such Revolving Credit Lender of the Request for Revolving Credit Increase; if the Agent shall not have received a written consent from a Revolving Credit Lender within such time period, such Revolving Credit Lender shall be deemed to have elected not to increase its applicable Commitment. If any one or more Revolving Credit Lenders shall elect not to increase its commitment, then the Agent may offer the remaining increase amount to each other Revolving Credit Lender hereunder on a non-pro rata basis, or to (A) any other Lender hereunder, or (B) any other Person meeting the requirements of Section 13.8 hereof (including, for the purposes of this Section 2.13, any existing Revolving Credit Lender which agrees to increase its commitment hereunder, the “New Revolving Credit Lender(s)”), to increase their respective applicable commitments (or to provide a commitment);
(c) the New Revolving Credit Lenders shall have become a party to this Agreement by executing and delivering a New Lender Addendum for a minimum amount for each such New Revolving Credit Lender that was not an existing Revolving Credit Lender of $5,000,000 and an aggregate amount for all such New Revolving Credit Lenders of that portion of the Revolving Credit Optional Increase Amount, taking into account the amount of any prior increase in the Revolving Credit Aggregate Commitment (pursuant to this Section 2.13) covered by the applicable Request; provided, however, that each New Revolving Credit Lender shall remit to the Agent funds in an amount equal to its Percentage (after giving effect to this Section 2.13) of all Advances of the Revolving Credit then outstanding, such sums to be reallocated among and paid to the existing Revolving Credit Lenders based upon the new Percentages as determined below;
(d) no New Revolving Credit Lender shall, without the consent of the Agent, receive compensation (whether in the form of a fee, original issue discount or interest rate pricing) for its commitment under the Revolving Credit, except as set forth in this Agreement;
(e) Borrowers shall have paid to the Agent for distribution to the existing Revolving Credit Lenders, as applicable, all interest and fees (including the Revolving Credit Facility Fee, which shall not be duplicative), if any, accrued to the effective date of such increase and any breakage fees attributable to the reduction (prior to the last day of the applicable Interest Period) of any outstanding Eurocurrency-based Advances, calculated on the basis set forth in Section 11.1 hereof as though Borrowers had prepaid such Advances;
(f) if requested, Borrowers shall have executed and delivered to the Agent new Revolving Credit Notes payable to each of the New Revolving Credit Lenders in the face amount of each such New Revolving Credit Lender's Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.13) and, if applicable, renewal and replacement Revolving Credit Notes payable to each of the existing Revolving Credit Lenders in the face amount of each such Revolving Credit Lender's Revolving Credit Percentage of the Revolving Credit Aggregate Commitment (after giving effect to this Section 2.13), dated as of the effective date of such increase (with appropriate insertions relevant to such Notes and acceptable to the applicable Revolving Credit Lenders, including the New Revolving Credit Lenders);
(g) prior to the date the increased commitment becomes available, the Borrowers shall have delivered to the Agent, in each case dated as of the date of the applicable increase:
(1) a pro forma Covenant Compliance Report demonstrating that, upon giving effect to the applicable increase, all financial covenants set forth in Section 7.9 would be satisfied on a pro forma basis on such date and for the most recent determination period for which Borrowers have delivered or is required to have delivered financial statements pursuant to Section 7.1(a) or (b);
(2) a certificate signed by a Responsible Officer of Borrowers (A) certifying and attaching the resolutions adopted by Borrowers approving or consenting to such increase, and (B) certifying that, before and after giving effect to such increase, (1) the representations and warranties contained in this Agreement and the other Loan Documents are true and correct in all material respects on and as of the date such increase becomes available, 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 (2) no Default or Unmatured Event of Default shall have occurred and be continuing and (ii) the Company shall be in compliance with all financial covenants set forth in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the Commitment Increase was outstanding for the entire such period).continuing; and
(bh) The Administrative Agent shall promptly notify the Lenders (as well as such amendments, acknowledgments, consents, documents, instruments, any other financial institution specified by the Company and reasonably acceptable to the Administrative Agent (each such financial institution that is not a Lender, a "Proposed New Lender")) of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amountregistrations, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitmentbeen executed and delivered and/or obtained by Borrowers as required by the Agent, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowingreasonable discretion.
Appears in 1 contract
Samples: Revolving Credit Agreement (Bridgepoint Education Inc)
Optional Increase. (ai) The Company may, at any time or times during Notwithstanding anything to the term of contrary contained in this Agreement, the Borrower may request from time to time that the aggregate Commitments hereunder be increased by written notice in an amount not less than $25,000,000 and not to exceed $200,000,000. The Borrower, with the form consent of Exhibit J to the Administrative Agent, make may (I) request one or more requests that the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of such notice; provided, however, that (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (ii) the Company shall be in compliance with all financial covenants set forth in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the Commitment Increase was outstanding for the entire such period).
(b) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified by the Company and reasonably acceptable to the Administrative Agent (each such financial institution that is not a Lender, a "Proposed New Lender")) of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by its Commitment and/or (II) arrange for one or more banks or financial institutions not a party hereto (an aggregate amount that exceeds “Other Lender”) to become parties to and Lenders under this Agreement. The Administrative Agent and the amount of Borrower shall have no obligation to offer any Lender or prospective new lender the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing opportunity to participate therein in the manner specified by the Company any increase pursuant to this Section, and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, nothing herein shall prohibit the Administrative Agent shall notify the Company as to the amountfrom retaining for its own account, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as Lender, all or substantially all of such Increase Date (each a "New increase. In no event may any Lender"), with a Revolving ’s Commitment and/or Term Commitmentbe increased without the prior written consent of such Lender, and the Revolving Commitment failure of each Increasing any Lender to respond to the Borrower’s request for the requested Commitment Increase an increase shall be increased, or, if applicable, each Increasing deemed a rejection by such Lender shall have a Term Commitment, in each case as of the Increase Date in Borrower’s request. The aggregate Commitments of all Lenders hereunder may not be increased if, at the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence time of subsection 2.16(c)); providedany proposed increase hereunder, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing. Notwithstanding anything contained in this Agreement to the contrary, no Lender shall have any obligation whatsoever to increase the amount of its Commitment, and each Lender may at its option, unconditionally and without cause, decline to increase its Commitment. Any increase of the aggregate Commitments under this Section 2.1(c) shall be on terms (including, without limitation, covenants, maturity, fees and interest rate) identical to the terms applicable to the existing Commitments and Loans hereunder.
(ii) If any Lender is willing, in its sole and absolute discretion, to increase the amount of its Commitment hereunder in the applicable amount (or would result from portion thereof) requested pursuant hereto (such a Lender hereinafter referred to as an “Increasing Lender”), it shall enter into a written agreement to that effect with the Borrower and the Administrative Agent, substantially in the form of Exhibit F (a “Commitment Increase Supplement”), which agreement shall specify, among other things, the amount of the increased Commitment of such Increasing Lender. Upon the effectiveness of such Increasing Lender’s increase in Commitment, Schedule 1.1 shall, without further action, be deemed to have been amended appropriately to reflect the increased Commitment of such Increasing Lender. Any Other Lender which is willing to become a party hereto and a Lender hereunder in the applicable amount (or portion thereof) requested pursuant hereto shall enter into a written agreement with the Borrower and the Administrative Agent, substantially in the form of Exhibit G (an “Additional Lender Supplement”), which agreement shall specify, among other things, its Commitment hereunder. When such Other Lender becomes a Lender hereunder as set forth in the Additional Lender Supplement, Schedule 1.1 shall, without further action, be deemed to have been amended as appropriate to reflect the Commitment Increaseof such Other Lender. Upon the execution by the Administrative Agent, the Borrower and such Other Lender of such Additional Lender Supplement, such Other Lender shall become and be deemed a party hereto and a “Lender” hereunder for all purposes hereof and shall enjoy all rights and assume all obligations on the part of the Lenders set forth in this Agreement, and its Commitment shall be the amount specified in its Additional Lender Supplement. Each Other Lender which executes and delivers an Additional Lender Supplement and becomes a party hereto and a “Lender” hereunder pursuant to such Additional Lender Supplement is hereinafter referred to as an “Additional Lender.”
(Biii) instruments executed by In no event shall an increase in a Lender’s Commitment or the Commitment of an Other Lender become effective until the Administrative Agent shall have received favorable written opinions of counsel for each Guarantor reaffirming its respective obligations under of the Loan Documents Borrower and the Guarantor, addressed to the Lenders, substantially in the form of Exhibit D-1 and Exhibit D-2, as they relate to this Agreement and the borrowings hereunder after giving effect to the Commitment Increase, (C) increase in the aggregate Commitments hereunder resulting from the increase in such Lender’s Commitment or the extension of a Commitment by such Other Lender. In no event that, after giving effect to such shall an increase in a Lender’s Commitment Increase, or the principal amount Commitment of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if an Other Lender become effective until the Administrative Agent requests, amendments shall have received an acknowledgement and consent from the Guarantor that the Guaranty Agreement remains valid and enforceable. In no event shall an increase in a Lender’s Commitment or the Commitment of an Other Lender which results in the aggregate Commitments of all Lenders hereunder exceeding the amount which is authorized at such time in resolutions previously delivered to the Mortgages Administrative Agent become effective until the Administrative Agent shall have received a copy of the resolutions, in form and substance satisfactory to the Administrative Agent increasing Agent, of the maximum principal amount secured Board of Directors of the Guarantor authorizing the borrowings by the Mortgages so that Borrower contemplated pursuant to such amount is not less than increase, certified by the Secretary or an Assistant Secretary of the Guarantor. Upon the effectiveness of the increase in a Lender’s Commitment or the Commitment of an Other Lender pursuant to the preceding sentence and execution by an Increasing Lender of a Commitment Increase Supplement or by an Additional Lender of an Additional Lender Supplement, the Borrower shall make such borrowing from such Increasing Lender or Additional Lender, and/or shall make such prepayment of outstanding Loans, as shall be required to cause the aggregate principal amount of Loans owing to each Lender (including each such Increasing Lender and Additional Lender) to be proportional to such Lender’s share of the Term Loans and Revolving Commitments, aggregate Commitments hereunder after giving effect to any increase thereof. The Borrower agrees to indemnify each Lender and to hold each Lender harmless from any loss or expense incurred as a result of any such Commitment Increaseprepayment in accordance with Section 2.14, together with as applicable.
(iv) No Other Lender may become an Additional Lender unless an Additional Lender Supplement (or counterparts thereof) has been signed by such endorsements bank or financial institution and which Additional Lender Supplement has been agreed to and acknowledged by the related title insurance policies held Borrower and acknowledged by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as Agent. No consent of any Lender through or acknowledgment of any of the Administrative Agent may reasonably request in connection with other Lenders hereunder shall be required therefor. In no event shall the Commitment Increase;
(ii) of any Lender be increased by reason of any bank or financial institution becoming an assumption letter in Additional Lender, or otherwise, but the form of Annex 2 to Exhibit J duly executed aggregate Commitments hereunder shall be increased by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving each Additional Lender’s Commitment. Upon any Lender entering into a Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e)Supplement or any Additional Lender becoming a party hereto, the Administrative Agent shall notify the Lenders each other Lender thereof and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile shall deliver to each Lender a copy of the occurrence of Additional Lender Supplement executed by such Additional Lender and agreed to and acknowledged by the Borrower and acknowledged by the Administrative Agent, and the Commitment Increase to be effected on Supplement executed by such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on agreed to and acknowledged by the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding Borrower and (y) in the case of the creation of Term Commitments, in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After acknowledged by the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Bunge LTD)
Optional Increase. (a) The Company may, at any time or times during the term of this Agreement, by written notice in the form of Exhibit J to the Administrative Agent, make one or more requests that the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term B Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of such notice; provided, however, that (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (ii) the Company shall be in compliance with all financial covenants set forth in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the Commitment Increase was outstanding for the entire such period).
(b) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified by the Company and reasonably acceptable to the Administrative Agent (each such financial institution that is not a Lender, a "Proposed New Lender")) of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase in connection with the proposed Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such the Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term B Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term B Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such the Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) certified copies of resolutions of the board of directors of the Company approving the Commitment Increase and the corresponding modifications to this Agreement and the Notes, (C) opinions of counsel to the Company, in form and substance reasonably satisfactory to the Administrative Agent, (D) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (CE) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent Agent, increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (DF) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form a counterpart of Annex 2 to Exhibit J this Agreement duly executed by each New Lender; and;
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term B Commitment, in a writing satisfactory to the form of Annex 1 to Exhibit J.Company and the Administrative Agent.
(f) On each the Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such the Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such the Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term B Commitments, in the amount of such New Lender's Term B Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such the Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such the Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term B Commitments, in the amount of such Increasing Lender's Term B Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term B Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such the Commitment Increase). If any the Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term B Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Optional Increase. (ai) The Company On the terms and subject to the conditions set forth below, Borrowers may, at any time or times during before the term of this AgreementMaturity Date, by written notice in increase the form of Exhibit J Total Revolving Loan Commitment; provided that:
(A) after giving effect to the Administrative Agentrequested increase, make one or more requests that the aggregate amount of the increases in the Total Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) Loan Commitment following the Effective Date shall not to exceed $100,000,000 250,000,000;
(each, a "Commitment Increase"), with any such Commitment Increase to B) there shall be effective as of a date (the "Increase Date") specified no more than five increases in the related notice Total Revolving Loan Commitment pursuant to the Administrative Agent that is at least 30 Business Days after this Section 2.1(c);
(C) prior to the date of any proposed increase, the Total Revolving Loan Commitment shall not have been decreased pursuant to Section 2.6(c);
(D) each such notice; provided, however, that increase in the Total Revolving Loan Commitment shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iE) no Event of Default or Unmatured Event of Default shall have occurred and be continuing or shall occur as a result of such increase;
(F) at the time of and immediately after giving effect to such increase, the representations and warranties of the Borrowers set forth in this Agreement are true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) on and as of the Increase Effective Date (unless stated to relate to a specific earlier date, in which case, such representations and warranties shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such specified earlier date; and
(G) the Borrowers shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Total Revolving Loan Commitment (including new or amended Notes, any related fee letters, documents evidencing the increased Revolving Loan Commitment held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Total Revolving Loan Commitment and related actions taken by the Borrowers, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.1(c) shall be submitted by the Borrowers to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in connection with such increase, the Administrative Agent (with the consent of Borrowers) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Revolving Loan Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Loan Commitment; no Lender that is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Revolving Loan Commitment. Only the consent of each Increasing Lender shall be required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this Section 2.1(c)(i). No Lender which elects not to increase the amount of its Revolving Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment as a result thereof without such Lender’s written consent.
(ii) Each Increasing Lender shall, as soon as practicable after the Company shall be in compliance with all financial covenants set forth in Sections 8.11Borrowers have submitted their request under Section 2.1(c)(i), 8.12, 8.13 and 8.14 on a pro forma basis for specify the period of four consecutive fiscal quarters ending on the last day amount of the last completed fiscal quarter immediately preceding proposed increase in its Revolving Loan Commitment which it is willing to offer. To the date extent the increased Revolving Loan Commitment Increase of the Increasing Lenders is proposed insufficient or there are no Increasing Lenders, the Borrowers may designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to become effective the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.1(c)(ii) (on each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the assumption that increase in the full amount of Indebtedness represented by the Total Revolving Loan Commitment. The Borrowers and the Administrative Agent shall have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Total Revolving Loan Commitment Increase was outstanding for the entire such period)among Increasing Lenders and New Lenders.
(biii) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified Each New Lender designated by the Company Borrowers and reasonably acceptable to the Administrative Agent (each such financial institution that is not shall become an additional party hereto as a Lender, a "Proposed New Lender")) Lender concurrently with the effectiveness of the request proposed increase in the amount of the Total Revolving Loan Commitment upon its execution of an instrument of joinder (which may contain such modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that such Revolving Loan Commitments are treated as Revolving Loan Commitments for all purposes under the Loan Documents), in each case prepared by the Company for Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent. Each New Lender shall provide the documentation required by Section 2.14(e).
(iv) Subject to the foregoing, any increase in the Total Revolving Loan Commitment Increase, which notice requested by the Borrowers shall include be effective as of the date proposed by the Borrowers (the “Increase Effective Date”) and shall be in the principal amount equal to (A) the proposed amount which the Increasing Lenders are willing to assume as increases to the amount of the requested Commitment Increase, their Revolving Loan Commitments plus (B) the proposed Increase Date and (C) amount offered by the date by which Lenders and Proposed New Lenders wishing with respect to participate the Total Revolving Loan Commitment, in either case as adjusted by the Commitment Increase must commit Borrowers and the Administrative Agent pursuant to participate in such Commitment Increase the last sentence of Section 2.1(c)(ii).
(the "Commitment Date"), which date shall be no later than five Business Days v) On or prior to the Increase Effective Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increaseincrease in the Total Revolving Loan Commitment, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Revolving Loan Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.1(c)(ii)); provided. Each Lender that is required to reduce the amount of Revolving Loans held by it (each such Lender, howevera “Decreasing Lender”) shall irrevocably assign, that without recourse or warranty of any kind whatsoever, to each Increasing Lender and New Lender participating in the Administrative Agent applicable increase in the Total Revolving Loan Commitment, and each applicable Increasing Lender and New Lender shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result irrevocably acquire from the Commitment IncreaseDecreasing Lenders, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, a portion of the principal amount of the Term Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding plus on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal Loans made on such date) in an amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so such that such amount is not less than the principal amount of the Term Revolving Loans held by each applicable Increasing Lender, New Lender and Decreasing Lender as of the Increase Effective Date shall be held in accordance with each such Lender’s Revolving Commitments, after giving effect to Proportionate Share (if any) as of such Commitment Increase, together with such endorsements date. Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the related title insurance policies held Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion (without payment of the fee required by Section 9.4(d)), which amount shall be allocated and paid by the Administrative Agent as in dollars by wire transfer of immediately available funds at or before 12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with Lenders shall adjust its records accordingly to reflect the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender payment of the increase Acquired Portion. The payments to be made in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment respect of the conditions set forth in subsection 2.16(e), Acquired Portion shall be made by the Administrative Agent shall notify the applicable Increasing Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in Dollars in immediately available funds, (A) in funds at or before 11:00 a.m. on the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving CommitmentsIncrease Effective Date, such payments to be made by the applicable Increasing Lenders and New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in Lenders pro rata based upon the case of the creation of Term Commitments, respective increases in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loan Commitments held by such Lenders on the excess Increase Effective Date.
(vi) To the extent any of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all the Revolving Loans then outstanding over (2acquired by the applicable Increasing Lenders and New Lenders from the Decreasing Lenders pursuant to Section 2.1(c)(v) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving above are LIBOR Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such LIBOR Loans, the Decreasing Lenders shall be entitled to compensation from the Borrowers as provided in Section 2.13 (as if Borrowers had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fIncrease Effective Date), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Optional Increase. (a) The Company Provided that no Default then exists, the Borrowers may, at within 30 days after the Effective Date, with the consent of the Administrative Agent, increase the Commitment Amount one time in an aggregate principal amount of up to $100,000,000 from oversubscription (the “Oversubscription Increase”). Each Lender that receives a post-closing allocation set forth under the heading “Oversubscription Increase Commitment” on Schedule IV hereto, hereby agrees to fund its pro rata share of the Oversubscription Increase, if the Borrower requests such Oversubscription Increase (subject to the terms and conditions set forth herein). In addition, provided that no Default then exists, the Borrowers may on any Business Day prior to the Commitment Termination Date, request from time to time in writing that the then effective Commitment Amount be increased or times during one or more term loan commitments (a “Term Loan Commitment”) be created in an aggregate amount not to exceed $250,000,000 (less the term amount of any Oversubscription Increase). Any request under this Agreement, Section to increase the Commitment Amount or create a Term Loan Commitment shall be submitted by written notice in the form of Exhibit J Borrowers to the Administrative Agent, make one or more requests that specify the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be proposed effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days which date shall be not less than 5 days after the date of such notice; provided, however, that request) and specify the amount of such increase (i) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and (ii) the Company which shall be in compliance integral multiples of $1,000,000). No Lender shall have any obligation, express or implied, to offer to increase its Commitment or offer a Term Loan Commitment (except with all financial covenants respect to an Oversubscription Increase as set forth in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period second sentence of four consecutive fiscal quarters ending on this Section 2.2.3(a)). Only the last day consent of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the Commitment Increase was outstanding for the entire such period).
(b) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified by the Company and reasonably acceptable to the Administrative Agent (each such financial institution that is which consent shall not a Lenderbe unreasonably withheld), a "Proposed New Lender"X.X. Xxxxxx Securities Inc. and Deutsche Bank Trust Company Americas, as Co-Lead Arrangers and Joint Book Runners (which consent shall not be unreasonably withheld), and those Lenders agreeing to increase their Commitments (the “Increasing Lenders”) of the request by the Company shall be required for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate an increase in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Amount pursuant to the last third sentence of subsection 2.16(cthis Section 2.2.3(a)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Optional Increase. (a) The Company On the terms and subject to the conditions set forth below, the Borrower may, (x) at any time or times during before the term of this AgreementTermination Date, by written notice request an increase in the form of Exhibit J to Total Commitments (each, a “Revolving Facility Increase”) and (y) at any time before the Administrative AgentTerm Loan Maturity Date, make request one or more requests that incremental term loans (each, an “Incremental Term Loan” and all such Revolving Facility Increases, together with the initial principal amount of the Incremental Term Loans, the “Incremental Increases”); provided that:
(i) after giving effect to the requested increaseIncremental Increase, the aggregate amount of increases in the Revolving Commitments be increasedTotal CommitmentsIncremental Increases after the First Amendment Effective Date shall not exceed the greater of (A) 100% of EBITDA for the most recently ended four consecutive fiscal quarter period for which financial statements have been delivered pursuant to Section 6.1 and (B) an amount which, or that Commitments after giving pro forma effect to make Additional Term Loans be committed to, the incurrence of such increase (assuming such increase is funded on the effective date thereof and after giving effect to any permanent repayment of indebtedness in an aggregate amount (for all such increasesconnection therewith) would not cause the Total Leverage Ratio to exceed $100,000,000 a ratio of 0.50 to 1.00 below the Total Leverage Ratio then required pursuant to Section 7.1;
(each, a "Commitment Increase"), with any such Commitment Increase ii) all required third party consents and approvals shall have been obtained;
(iii) prior to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of any proposed increaseRevolving Facility Increase, the Total Commitments shall not have been decreased pursuant to Section 2.6;
(iv) each such notice; provided, however, that increase in the Total CommitmentsIncremental Increase shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iv) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and or shall occur as a result of such increaseIncremental Increase; and
(iivi) the Company Borrower shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Total CommitmentsIncremental Increases (including new or amended Notes, any related fee letters, documents evidencing the increased Commitment and/or Incremental Term Loan held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Total CommitmentsIncremental Increase and related actions taken by the Borrower, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent);
(vii) each Incremental Increase shall constitute Obligations of the Borrower and will be guaranteed by the Subsidiary Guarantors on a pari passu basis with the other Obligations; and
(viii) with respect to any Incremental Term Loan:
(1) the maturity date and principal amortization for each Incremental Term Loan shall be in compliance with all financial covenants set forth in Sections 8.11determined by the applicable Lenders providing such Incremental Term Loan and the Borrower on the applicable Increase Effective Date; provided that no Incremental Term Loan will have a shorter weighted average life to maturity than the remaining weighted average life to maturity of the Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date;
(2) the Applicable Margin and pricing grid, 8.12if applicable, 8.13 for each Incremental Term Loan shall be determined by the applicable Lenders providing such Incremental Term Loan and 8.14 the Borrower on a pro forma basis the applicable Increase Effective Date; provided that if the Applicable Margin for an Incremental Term Loan exceeds that for the period existing Term Loans by more than 0.50% per annum, then such Applicable Margin shall be reasonably acceptable to the Administrative Agent; and
(3) except as provided in this Section 2.19, all other terms and conditions applicable to any Incremental Term Loan shall be consistent with the terms and conditions applicable to the Initial Term Loan. Any request under this Section 2.19 shall be submitted by the Borrower to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of four consecutive fiscal quarters ending on such increase and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increaseIncremental Increase. If any fees are to be paid or offered in connection with such increaseIncremental Increase, the last day Administrative Agent (with the consent of Borrower) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Commitmentprovide such Incremental Increase, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Commitmentcommit to such Incremental Increase; no Lender which is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Commitmentprovide any portion of such Incremental Increase. Only the consent of each Increasing Lender shall be required for an increase in the amount of the last completed fiscal quarter immediately preceding Total CommitmentsIncremental Increase pursuant to this Section 2.19(a). No Lender which elects not to increase the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the its Commitmentprovide any portion of an Incremental Increase may be replaced in respect of its existing Commitment Increase was and/or outstanding for the entire Loans as a result thereof without such period)Lender’s written consent.
(b) Each Increasing Lender shall, as soon as practicable after the Borrower has submitted its request under Section 2.19(a), specify the amount of the proposed increase in its CommitmentIncremental Increase which it is willing to offer. To the extent the increased Commitment and/or commitment to the Incremental Term Loan, as applicable, of the Increasing Lenders is insufficient or there are no Increasing Lenders, the Borrower may designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.19(b) (each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the increase in the amount of the Total CommitmentsIncremental Increase. The Borrower shall pay a fee to the Administrative Agent solely for the account of the Administrative Agent in connection with any such increaseIncremental Increase as set forth in the Fee Letter. The Borrower and the Administrative Agent shall promptly notify have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Total CommitmentsIncremental Increase among Increasing Lenders and New Lenders.
(as well as any other financial institution specified c) Each New Lender designated by the Company Borrower and reasonably acceptable to the Administrative Agent (each such financial institution that is not shall become an additional party hereto as a Lender, a "Proposed New Lender")) Lender concurrently with the effectiveness of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate increase in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall Total CommitmentsIncremental Increase upon its execution of an instrument of joinder (which may contain such modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that such CommitmentsRevolving Facility Increases and/or Incremental Term Loans, as applicable, are treated as Commitments and/or Loans, as applicable, for all purposes under the Loan Documents), in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify case prepared by the Administrative Agent that they are willing and otherwise in form and substance reasonably satisfactory to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following Subject to the foregoing, any increase in the Total CommitmentsIncremental Increase requested by the Borrower shall be effective as of the date proposed by the Borrower (but the “Increase Effective Date”) and shall be in no event later than two Business Days afterthe principal amount equal to (i) the Commitment Date amount which the Increasing Lenders are willing to assume as increases to the amount of their Commitmentswith respect to such Incremental Increase plus (ii) the amount offered by the New Lenders with respect to the Total Commitmentsuch Incremental Increase, in either case as adjusted by the Borrower and the Administrative Agent pursuant to the last sentence of Section 2.19(b).
(e) On or prior to the Increase Effective Date, with respect to any Commitment increase in the Total CommitmentsRevolving Facility Increase, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.19(b)); provided. Each Lender which is required to reduce the amount of Revolving Loans held by it (each such Lender, howevera “Decreasing Lender”) shall irrevocably assign, without recourse or warranty of any kind whatsoever (except that each Decreasing Lender warrants that it is the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer legal and beneficial owner of the Company stating Revolving Loans assigned by it under this Section 2.19(e) and that no Event such Revolving Loans are held by such Decreasing Lender free and clear of Default or Unmatured Event of Default has occurred adverse claims), to each Increasing Lender and is continuingNew Lender participating in the applicable increase in the Total Commitments, or would result and each applicable Increasing Lender and New Lender shall irrevocably acquire from the Commitment IncreaseDecreasing Lenders, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, a portion of the principal amount of the Term Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding plus on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal Loans made on such date) in an amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so such that such amount is not less than the principal amount of the Term Revolving Loans held by each applicable Increasing Lender, New Lender and Revolving Commitments, after giving effect to Decreasing Lender as of the Increase Effective Date shall be held in accordance with each such Commitment Increase, together with Lender’s Percentage (if any) as of such endorsements date. Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the related title insurance policies held Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion, which amount shall be allocated and paid by the Administrative Agent as at or before 12:00 P.M. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with Lenders shall adjust its records accordingly to reflect the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender payment of the increase Acquired Portion. The payments to be made in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment respect of the conditions set forth in subsection 2.16(e), Acquired Portion shall be made by the Administrative Agent shall notify the applicable Increasing Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in Dollars in immediately available funds, (A) in funds at or before 11:00 A.M. on the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving CommitmentsIncrease Effective Date, such payments to be made by the applicable Increasing Lenders and New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in Lenders pro rata based upon the case of the creation of Term Commitments, respective increases in the amount of the Commitments held by such New Lender's Term Commitment and Lenders on the Increase Effective Date.
(Bf) in To the case extent any of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loans acquired by the excess of (1applicable Increasing Lenders and New Lenders from the Decreasing Lenders pursuant to Section 2.19(e) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving above are Eurodollar Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such Eurodollar Loans, the Decreasing Lenders shall be entitled to compensation from the Borrower as provided in Section 2.16 (as if Borrower had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fIncrease Effective Date), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Fair Isaac Corp)
Optional Increase. (a) The Company On the terms and subject to the conditions set forth below, the Borrower may, at any time or times during before the term of this AgreementTermination Date, by written notice in increase the form of Exhibit J Total Commitments; provided that:
(i) after giving effect to the Administrative Agentrequested increase, make one or more requests that the aggregate amount of the Revolving increases in the Total Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) shall not to exceed $100,000,000 100,000,000;
(each, a "Commitment Increase"), with any such Commitment Increase ii) all required third party consents and approvals shall have been obtained;
(iii) prior to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of any proposed increase, the Total Commitments shall not have been decreased pursuant to Section 2.6;
(iv) each such notice; provided, however, that increase in the Total Commitments shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iv) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and or shall occur as a result of such increase; and
(iivi) the Company Borrower shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Total Commitments (including new or amended Notes, any related fee letters, documents evidencing the increased Commitment held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Total Commitments and related actions taken by the Borrower, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.19 shall be submitted by the Borrower to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in compliance connection with all financial covenants set forth such increase, the Administrative Agent (with the consent of Borrower) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Commitment; no Lender which is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Commitment. Only the consent of each Increasing Lender shall be required for an increase in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day amount of the last completed fiscal quarter immediately preceding Total Commitments pursuant to this Section 2.19(a). No Lender which elects not to increase the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the its Commitment Increase was outstanding for the entire may be replaced in respect of its existing Commitment as a result thereof without such period)Lender’s written consent.
(b) Each Increasing Lender shall, as soon as practicable after the Borrower has submitted its request under Section 2.19(a), specify the amount of the proposed increase in its Commitment which it is willing to offer. To the extent the increased Commitment of the Increasing Lenders is insufficient or there are no Increasing Lenders, the Borrower may designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.19(b) (each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the increase in the amount of the Total Commitments. The Borrower shall pay a fee to the Administrative Agent and the Syndication Agent solely for the account of the Administrative Agent and the Syndication Agent in connection with any such increase as set forth in the Fee Letter. The Borrower and the Administrative Agent shall promptly notify have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Total Commitments among Increasing Lenders and New Lenders.
(as well as any other financial institution specified c) Each New Lender designated by the Company Borrower and reasonably acceptable to the Administrative Agent (each such financial institution that is not shall become an additional party hereto as a Lender, a "Proposed New Lender")) Lender concurrently with the effectiveness of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate increase in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall Total Commitments upon its execution of an instrument of joinder (which may contain such modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that such Commitments are treated as Commitments for all purposes under the Loan Documents), in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify case prepared by the Administrative Agent that they are willing and otherwise in form and substance reasonably satisfactory to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following Subject to the foregoing, any increase in the Total Commitments requested by the Borrower shall be effective as of the date proposed by the Borrower (but the “Increase Effective Date”) and shall be in no event later than two Business Days afterthe principal amount equal to (i) the Commitment Date amount which the Increasing Lenders are willing to assume as increases to the amount of their Commitments plus (ii) the amount offered by the New Lenders with respect to the Total Commitment, in either case as adjusted by the Borrower and the Administrative Agent pursuant to the last sentence of Section 2.19(b).
(e) On or prior to the Increase Effective Date, with respect to any Commitment Increaseincrease in the Total Commitments, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.19(b)); provided. Each Lender which is required to reduce the amount of Revolving Loans held by it (each such Lender, howevera “Decreasing Lender”) shall irrevocably assign, without recourse or warranty of any kind whatsoever (except that each Decreasing Lender warrants that it is the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer legal and beneficial owner of the Company stating Revolving Loans assigned by it under this Section 2.19(e) and that no Event such Revolving Loans are held by such Decreasing Lender free and clear of Default or Unmatured Event of Default has occurred adverse claims), to each Increasing Lender and is continuingNew Lender participating in the applicable increase in the Total Commitments, or would result and each applicable Increasing Lender and New Lender shall irrevocably acquire from the Commitment IncreaseDecreasing Lenders, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, a portion of the principal amount of the Term Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding plus on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal Loans made on such date) in an amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so such that such amount is not less than the principal amount of the Term Revolving Loans held by each applicable Increasing Lender, New Lender and Revolving Commitments, after giving effect to Decreasing Lender as of the Increase Effective Date shall be held in accordance with each such Commitment Increase, together with Lender’s Percentage (if any) as of such endorsements date. Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the related title insurance policies held Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion, which amount shall be allocated and paid by the Administrative Agent as at or before 12:00 P.M. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with Lenders shall adjust its records accordingly to reflect the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender payment of the increase Acquired Portion. The payments to be made in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment respect of the conditions set forth in subsection 2.16(e), Acquired Portion shall be made by the Administrative Agent shall notify the applicable Increasing Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in Dollars in immediately available funds, (A) in funds at or before 11:00 A.M. on the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving CommitmentsIncrease Effective Date, such payments to be made by the applicable Increasing Lenders and New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in Lenders pro rata based upon the case of the creation of Term Commitments, respective increases in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loan Commitments held by such Lenders on the excess Increase Effective Date.
(f) To the extent any of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all the Revolving Loans then outstanding over (2acquired by the applicable Increasing Lenders and New Lenders from the Decreasing Lenders pursuant to Section 2.19(e) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving above are Eurodollar Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such Eurodollar Loans, the Decreasing Lenders shall be entitled to compensation from the Borrower as provided in Section 2.16 (as if Borrower had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fIncrease Effective Date), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Fair Isaac Corp)
Optional Increase. (ai) The Company On the terms and subject to the conditions set forth below, Borrowers may, at any time or times before the Revolving Loan Maturity Date, increase the Total Revolving Loan Commitment; provided that:
(A) after giving effect to the requested increase, the aggregate amount of the increases in the Total Revolving Loan Commitment pursuant to this Section 2.1(b)(i) shall not exceed $50,000,000;
(B) prior to the date of any proposed increase, the Total Revolving Loan Commitment shall not have been decreased pursuant to Section 2.6;
(C) all required third party consents and approvals shall have been obtained;
(D) each such increase in the Total Revolving Loan Commitment shall be equal to at least $10,000,000 plus an integral multiple of $5,000,000 in excess thereof;
(E) the aggregate number of increases in the Total Revolving Loan Commitment made during the term of this Agreement, by written notice in the form of Exhibit J to the Administrative Agent, make one or more requests that the aggregate amount of the Revolving Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount Agreement does not exceed three (for all such increases) not to exceed $100,000,000 3);
(each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of such notice; provided, however, that (iF) no Event of Default or Unmatured Event of Default shall have occurred and be continuing or shall occur as a result of such increase; and
(G) the Borrowers shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with any such increase in the Total Revolving Loan Commitment (new or amended Notes, any related fee letters, documents evidencing the increased Revolving Loan Commitment held by any applicable Lender, any joinder agreements related to a new Lender, resolutions regarding the increase in the Total Revolving Loan Commitment and related actions taken by Borrowers and certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.1(b) shall be submitted by the Borrowers to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Default or Event of Default exists or will occur as a result of such increase. If the Borrowers determine to pay or offer any fees in connection with such increase, the Administrative Agent in such notice (with the consent of the Borrowers) may also specify any fees offered to those Lenders (the “Increasing Lenders”) that agree to increase the amount of their respective Revolving Loan Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Revolving Loan Commitment; no Lender that is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Revolving Loan Commitment. No consent of the Lenders or Administrative Agent shall be required for an increase in the amount of the Total Revolving Loan Commitment pursuant to this Section 2.1(b), other than the consent of each Increasing Lender, if any. No Lender that elects not to increase the amount of its Revolving Loan Commitment may be replaced in respect of its existing Revolving Loan Commitment solely as a result of such election without such Lender’s written consent.
(ii) Each Increasing Lender shall, as soon as practicable after the Company Borrowers have submitted a request under Section 2.1(b)(i), specify the amount of the proposed increase in its Revolving Loan Commitment that it is willing to offer. To the extent the increased Revolving Loan Commitment offered by the Increasing Lenders is insufficient or there are no Increasing Lenders, the Borrowers may designate new lenders that qualify as Eligible Assignees and that are reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.1(b)(ii) (each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the increase in the amount of the Total Revolving Loan Commitment. To the extent agreed by the Borrowers and the Administrative Agent, the Borrowers shall be in compliance with all financial covenants set forth in Sections 8.11, 8.12, 8.13 and 8.14 on pay a pro forma basis fee to the Administrative Agent solely for the period of four consecutive fiscal quarters ending on the last day account of the last completed fiscal quarter immediately preceding Administrative Agent in connection any such increase. The Borrowers in consultation with the date Administrative Agent shall have discretion to adjust the Commitment Increase is proposed to become effective (on allocation of the assumption that the full increased amount of Indebtedness represented by the Total Revolving Loan Commitment Increase was outstanding for the entire such period)among Increasing Lenders and New Lenders.
(biii) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified Each New Lender designated by the Company Borrowers and reasonably acceptable to the Administrative Agent shall become an additional party hereto as a New Lender concurrently with the effectiveness of the proposed increase in the amount of the Total Revolving Loan Commitment upon its execution of an instrument of joinder (each which may contain such financial institution modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that is not a Lender, a "Proposed such New Lender"’s commitments to lend are treated as Revolving Loan Commitments for all purposes under the Loan Documents), in each case prepared by the Administrative Agent and otherwise in form and substance reasonably satisfactory to the Administrative Agent and the Borrowers.
(iv) Subject to the foregoing, any increase in the Total Revolving Loan Commitment requested by Borrowers shall be effective as of the request date proposed by Borrowers (the Company for “Increase Effective Date”) and shall be in the Commitment Increase, which notice shall include principal amount equal to (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the aggregate amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Increasing Lenders and Proposed New Lenders notify the Administrative Agent that they are willing offered to increase the amount of their respective Commitments by an Revolving Loan Commitments, plus (B) the aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified offered by the Company New Lenders, in either case as adjusted by Borrowers and the Administrative AgentAgent pursuant to the last sentence of Section 2.1(b)(ii).
(dv) Promptly following (but in no event later than two Business Days after) On or prior to the Commitment Date Increase Effective Date, with respect to any Commitment Increaseincrease in the Total Revolving Loan Commitment, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Revolving Loan Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.1(b)(ii). Each Lender that is required to reduce the amount of Revolving Loans held by it (each such Lender, a “Decreasing Lender”) shall irrevocably assign, without recourse or warranty of any kind whatsoever (except that each Decreasing Lender warrants that it is the legal and beneficial owner of the Revolving Loans assigned by it under this Section 2.1(b)(v) and that such Revolving Loans are held by such Decreasing Lender free and clear of adverse claims); provided, howeverto each Increasing Lender and New Lender participating in the applicable increase in the Total Revolving Loan Commitment, and each applicable Increasing Lender and New Lender shall irrevocably acquire from the Decreasing Lenders, a portion of the principal amount of the Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date) in an amount such that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer principal amount of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed Revolving Loans held by each Guarantor reaffirming its respective obligations under applicable Increasing Lender, New Lender and Decreasing Lender as of the Loan Documents Increase Effective Date shall be held in accordance with each such Lender’s Revolving Proportionate Share (if any) as of such date (after giving effect to the Commitment Increase, (C) increase in the event thatTotal Revolving Loan Commitment). Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion, after giving effect which amount shall be allocated and paid by the Administrative Agent at or before 12:00 p.m. on the Increase Effective Date to such Commitment Increase, the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Term Revolving Loans outstanding plus held by such Lenders on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if Loans made on such date). Each of the Administrative Agent requests, amendments and the Lenders shall adjust its records accordingly to reflect the Mortgages payment of the Acquired Portion. The payments to be made in form and substance satisfactory to respect of the Administrative Agent increasing the maximum principal amount secured Acquired Portion shall be made by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each applicable Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in dollars in immediately available fundsfunds at or before 11:00 a.m. on the Increase Effective Date, (A) such payments to be made by the applicable Increasing Lenders and New Lenders pro rata based upon the respective increases in the case amount of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loan Commitments held by such New Lender's Revolving Percentage Lenders on the Increase Effective Date (after giving effect to such Commitment Increasethe increase in the Total Revolving Loan Commitment).
(vi) To the extent any of all the Revolving Loans then outstanding acquired by the applicable Increasing Lenders and (yNew Lenders from the Decreasing Lenders pursuant to Section 2.1(b)(v) in above are Eurodollar Loans and the case of the creation of Term Commitments, in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such Eurodollar Loans, the Decreasing Lenders shall be entitled to compensation from the Borrowers as provided in Section 2.13 (as if the Borrowers had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) Increase Effective Date); provided, that such Decreasing Lender shall not be entitled to such compensation unless such Decreasing Lender shall have used its reasonable commercial efforts to assign Revolving Loans of a Type other than Eurodollar Loans to the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective applicable Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such BorrowingLenders.
Appears in 1 contract
Optional Increase. (a) The Company At any time prior to the Termination Date RGA may, at any time or times during on the term of this Agreementterms set forth below, by written notice in the form of Exhibit J to the Administrative Agent, make one or more requests request that the aggregate amount of the Revolving Commitments hereunder be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) not to exceed $100,000,000 (each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of such notice; provided, however, that (i) the aggregate Commitments hereunder at no Event time shall exceed $650,000,000, (ii) the aggregate amount of increases to the Commitments effected under this Section 1.08(c) shall not exceed $50,000,000, (iii) each such request shall be in a minimum amount of at least $10,000,000 and in increments of $5,000,000 in excess thereof, (iv) an increase in the Commitments hereunder may only be made at a time when no Default or Unmatured Event of Default shall have occurred and be continuing continuing, and (iiv) the Company no Bank’s Commitment shall be increased under this Section 1.08(c) without its written consent. In the event of such a requested increase in compliance with all the Commitments, any financial covenants institution which RGA and the Administrative Agent invite to become a Bank or to increase its Commitment may set forth in Sections 8.11, 8.12, 8.13 the amount of its Commitment at a level agreed to by RGA and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on Administrative Agent. In the last day event that RGA and one or more of the last completed fiscal quarter immediately preceding Banks (or other financial institutions) shall agree upon such an increase in the date Commitments (x) RGA, the Administrative Agent and each Bank or other financial institution increasing its Commitment or extending a new Commitment shall enter into an agreement substantially in the form of Exhibit B (such agreement, a “Commitment Increase is proposed to become effective (on Supplement”) setting forth the assumption amount of the Commitments, as so increased, providing that the full amount of Indebtedness represented by financial institutions extending new Commitments shall be Banks for all purposes under this Agreement, and setting forth such additional provisions as the Commitment Increase was outstanding for the entire such period).
(b) The Administrative Agent shall promptly notify the Lenders consider reasonably appropriate, (as well as any other y) RGA shall furnish, if requested, a new Note to each financial institution specified by that is extending a new Commitment or increasing its Commitment and (z) in the Company and reasonably acceptable to the Administrative Agent (each such case of any financial institution that is not a Lender, a "Proposed New Lender")) Bank immediately prior to its execution and delivery of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender Supplement and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) not listed on the Commitment Date NAIC Approved Bank List, such financial institution and its Confirming Bank shall enter into an agreement of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein type contemplated in the manner specified by definition of “Confirming Bank” herein. No such amendment shall require the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the approval or consent of any Bank whose Commitment Date with respect to any Commitment Increase, the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be is not being increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that any provision of such amendment included as an additional provision referred to in clause (x) above which otherwise would require the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer consent of the Company stating that no Event Required Banks hereunder shall not be effective without such consent. Upon the effectiveness of Default or Unmatured Event of Default has occurred and is continuing, or would result from any increase in Commitments as contemplated by the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increasefollowing sentence, the principal amount Maximum Amount of Revolving Credit shall be increased simultaneously and proportionally therewith. Upon the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgagesexecution and delivery of such amendment as provided above, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that upon satisfaction of such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent other conditions as the Administrative Agent may reasonably specify upon the request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment orfinancial institutions that are extending new Commitments (including, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(e)without limitation, the Administrative Agent shall notify administering the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile reallocation of the occurrence of outstanding Loans and Total L/C Exposure ratably among the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (Banks after giving effect to each such Commitment Increase) of all Revolving Loans then outstanding and (y) increase in the case Commitments and the Maximum Amount of Revolving Credit, and the creation delivery of Term Commitmentscertificates, in the amount evidence of such New Lender's Term Commitment corporate authority and (B) in the case legal opinions on behalf of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fRGA), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) Agreement shall be deemed to be funded at the applicable Offshore Rate for such Borrowingamended accordingly.
Appears in 1 contract
Samples: Credit Agreement (Reinsurance Group of America Inc)
Optional Increase. (a) The Company On the terms and subject to the conditions set forth below, the U.S. Borrower may, at any time or times during before the term of this AgreementMaturity Date, by written notice in increase the form of Exhibit J Aggregate Commitments; provided that:
(i) after giving effect to the Administrative Agentrequested increase, make one or more requests that the aggregate amount of the Revolving increases in the Aggregate Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) shall not to exceed $100,000,000 125,000,000;
(each, a "Commitment Increase"), with any such Commitment Increase to be effective as of a date (the "Increase Date"ii) specified in the related notice to the Administrative Agent that is at least 30 Business Days after shall have consented to the requested increase and all required third party consents and approvals shall have been obtained;
(iii) prior to the date of any proposed increase, the Aggregate Commitments shall not have been decreased pursuant to Section 2.09;
(iv) each such notice; provided, however, that increase in the Aggregate Commitments shall be equal to $10,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iv) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and or shall occur as a result of such increase; and
(iivi) the Company Borrowers shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Aggregate Commitments (including new or amended notes, any related fee letters, documents evidencing the increased Commitment held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Aggregate Commitments and related actions taken by the Borrowers, certified as true and correct by a Financial Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.23 shall be in compliance with all financial covenants set forth in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day of the last completed fiscal quarter immediately preceding the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented submitted by the Commitment Increase was outstanding for the entire such period).
(b) The Administrative Agent shall promptly notify the Lenders (as well as any other financial institution specified by the Company and reasonably acceptable U.S. Borrower to the Administrative Agent (each such financial institution that is not a Lenderwhich shall promptly forward copies to the Lenders), a "Proposed New Lender")) of the request by the Company for the Commitment Increase, which notice shall include (A) specify the proposed effective date and amount of the requested Commitment Increasesuch increase and be accompanied by a certificate of a Financial Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in connection with such increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on with the Commitment Date consent of the amount by U.S. Borrower) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall be in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify the Administrative Agent that they are willing agree to increase the amount of their respective Commitments Commitment, which fees may be variable based upon the amount by an aggregate amount that exceeds which any such Lender is willing to increase the amount of the requested Commitment Increase, the Commitment Increase its Commitment; no Lender which is not an Increasing Lender shall be allocated among entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the Lenders and Proposed New Lenders willing to participate therein in amount of its Commitment. Only the manner specified by the Company and the Administrative Agent.
(d) Promptly following (but in no event later than two Business Days after) the Commitment Date with respect to any Commitment Increase, consent of the Administrative Agent shall notify the Company as to the amount, if any, of the requested Commitment Increase in which the Lenders and Proposed New Lenders are willing to participate.
(e) On each Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Date (each a "New Lender"), with a Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase shall be increased, or, if applicable, each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender pursuant to the last sentence of subsection 2.16(c)); provided, however, that the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer of the Company stating that no Event of Default or Unmatured Event of Default has occurred and is continuing, or would result from the Commitment Increase, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, the principal amount of the Term Loans outstanding plus the aggregate Revolving Commitments would exceed the maximum principal amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so that such amount is not less than the principal amount of the Term Loans and Revolving Commitments, after giving effect to such Commitment Increase, together with such endorsements to the related title insurance policies held by the Administrative Agent as the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with the Commitment Increase;
(ii) be required for an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender of the increase in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 Aggregate Commitments pursuant to Exhibit J.
(f) On each Increase Date, upon fulfillment of the conditions set forth in subsection 2.16(ethis Section 2.23(a), the Administrative Agent shall notify the Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase . No Lender which elects not to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available to the Administrative Agent in immediately available funds, (A) in the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, such New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such New Lender's Term its Commitment and (B) may be replaced in the case respect of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, the excess of (1) such Increasing Lender's Revolving Percentage (after giving effect to such its existing Commitment Increase) of all Revolving Loans then outstanding over (2) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Date shall occur on a date that is not the last day of the Interest Period for all Revolving Loans or Term Loans bearing interest based on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(f), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for thereof without such BorrowingLender’s written consent.
Appears in 1 contract
Samples: Credit Agreement (Miller Herman Inc)
Optional Increase. (a) The Company On the terms and subject to the conditions set forth below, the Borrower may, at any time or times during before the term of this AgreementTermination Date, by written notice in increase the form of Exhibit J Total Commitments; provided that:
(i) after giving effect to the Administrative Agentrequested increase, make one or more requests that the aggregate amount of the Revolving increases in the Total Commitments be increased, or that Commitments to make Additional Term Loans be committed to, in an aggregate amount (for all such increases) shall not to exceed $100,000,000 100,000,000;
(each, a "Commitment Increase"), with any such Commitment Increase ii) all required third party consents and approvals shall have been obtained;
(iii) prior to be effective as of a date (the "Increase Date") specified in the related notice to the Administrative Agent that is at least 30 Business Days after the date of any proposed increase, the Total Commitments shall not have been decreased pursuant to Section 2.6;
(iv) each such notice; provided, however, that increase in the Total Commitments shall be equal to $25,000,000 or an integral multiple of $5,000,000 in excess thereof;
(iv) no Event of Default or Unmatured Event of Default shall have occurred and be continuing and or shall occur as a result of such increase; and
(iivi) the Company Borrower shall have executed and delivered such documents and instruments and taken such other actions as may be reasonably requested by the Administrative Agent in connection with such increases in the Total Commitments (including new or amended Notes, any related fee letters, documents evidencing the increased Commitment held by any applicable Lender, any joinder agreements related to a New Lender, resolutions regarding the increase in the Total Commitments and related actions taken by the Borrower, certified as true and correct by a Responsible Officer and legal opinions, all in form and substance reasonably satisfactory to the Administrative Agent). Any request under this Section 2.19 shall be submitted by the Borrower to the Administrative Agent (which shall promptly forward copies to the Lenders), specify the proposed effective date and amount of such increase and be accompanied by a certificate of a Responsible Officer stating that no Default exists or will occur as a result of such increase. If any fees are to be paid or offered in compliance connection with all financial covenants set forth such increase, the Administrative Agent (with the consent of Borrower) may also specify any fees offered to those Lenders (the “Increasing Lenders”) which agree to increase the amount of their respective Commitment, which fees may be variable based upon the amount by which any such Lender is willing to increase the amount of its Commitment; no Lender which is not an Increasing Lender shall be entitled to receive any such fees. No Lender shall have any obligation, express or implied, to offer to increase the amount of its Commitment. Only the consent of each Increasing Lender shall be required for an increase in Sections 8.11, 8.12, 8.13 and 8.14 on a pro forma basis for the period of four consecutive fiscal quarters ending on the last day amount of the last completed fiscal quarter immediately preceding Total Commitments pursuant to this Section 2.19(a). No Lender which elects not to increase the date the Commitment Increase is proposed to become effective (on the assumption that the full amount of Indebtedness represented by the its Commitment Increase was outstanding for the entire may be replaced in respect of its existing Commitment as a result thereof without such period)Lender’s written consent.
(b) Each Increasing Lender shall, as soon as practicable after the Borrower has submitted its request under Section 2.19(a), specify the amount of the proposed increase in its Commitment which it is willing to offer. To the extent the increased Commitment of the Increasing Lenders is insufficient or there are no Increasing Lenders, the Borrower may designate new lenders who qualify as Eligible Assignees and which are reasonably acceptable to the Administrative Agent as additional Lenders hereunder in accordance with this Section 2.19(b) (each such new Lender being a “New Lender”), which New Lender may assume all or a portion of the increase in the amount of the Total Commitments. The Borrower shall pay a fee to the Administrative Agent and the Syndication Agent solely for the account of the Administrative Agent and the Syndication Agent in connection with any such increase as set forth in the Fee Letter. The Borrower and the Administrative Agent shall promptly notify have discretion jointly to adjust the allocation of the increased aggregate principal amount of the Total Commitments among Increasing Lenders and New Lenders.
(as well as any other financial institution specified c) Each New Lender designated by the Company Borrower and reasonably acceptable to the Administrative Agent (each such financial institution that is not shall become an additional party hereto as a Lender, a "Proposed New Lender")) Lender concurrently with the effectiveness of the request by the Company for the Commitment Increase, which notice shall include (A) the proposed amount of the requested Commitment Increase, (B) the proposed Increase Date and (C) the date by which Lenders and Proposed New Lenders wishing to participate increase in the Commitment Increase must commit to participate in such Commitment Increase (the "Commitment Date"), which date shall be no later than five Business Days prior to the Increase Date.
(c) Each Lender and Proposed New Lender that is willing to participate in such Commitment Increase (each, an "Increasing Lender") shall give written notice to the Administrative Agent no later than 10:00 a.m. (San Francisco time) on the Commitment Date of the amount by which it is willing to participate in such Commitment Increase, which amount shall not exceed the amount of the requested Commitment Increase. It shall Total Commitments upon its execution of an instrument of joinder (which may contain such modifications to this Agreement and terms and conditions relating thereto as may be necessary to ensure that such Commitments are treated as Commitments for all purposes under the Loan Documents), in each Lender's sole discretion whether to offer to participate in such Commitment Increase. If the Lenders and Proposed New Lenders notify case prepared by the Administrative Agent that they are willing and otherwise in form and substance reasonably satisfactory to increase the amount of their respective Commitments by an aggregate amount that exceeds the amount of the requested Commitment Increase, the Commitment Increase shall be allocated among the Lenders and Proposed New Lenders willing to participate therein in the manner specified by the Company and the Administrative Agent.
(d) Promptly following Subject to the foregoing, any increase in the Total Commitments requested by the Borrower shall be effective as of the date proposed by the Borrower (but the “Increase Effective Date”) and shall be in no event later than two Business Days afterthe principal amount equal to (i) the Commitment Date amount which the Increasing Lenders are willing to assume as increases to the amount of their Commitments plus (ii) the amount offered by the New Lenders with respect to the Total Commitment, in either case as adjusted by the Borrower and the Administrative Agent pursuant to the last sentence of Section 2.19(b).
(e) On or prior to the Increase Effective Date, with respect to any Commitment Increaseincrease in the Total Commitments, the Administrative Agent shall notify the Company as to the amount, if any, each Lender of the requested Commitment Increase in which amount required to be paid by or to such Lender so that the Revolving Loans held by the Lenders and Proposed New Lenders are willing to participate.
(e) On each on the Increase Date, each Proposed New Lender that accepts an offer to participate in the requested Commitment Increase as a Lender shall become a Lender party to this Agreement as of such Increase Effective Date (each a "New Lender"), with a before giving effect to any new Revolving Commitment and/or Term Commitment, and the Revolving Commitment of each Increasing Lender for the requested Commitment Increase Loans made on such date) shall be increased, or, if applicable, held by each Increasing Lender shall have a Term Commitment, in each case as of the Increase Date in the amount set forth in its notice delivered to the Administrative Agent pro rata in accordance with subsection 2.16(c) (or by the amount allocated to such Lender or Proposed New Lender Commitments of the Lenders as adjusted pursuant to the last sentence of subsection 2.16(cSection 2.19(b)); provided. Each Lender which is required to reduce the amount of Revolving Loans held by it (each such Lender, howevera “Decreasing Lender”) shall irrevocably assign, without recourse or warranty of any kind whatsoever (except that each Decreasing Lender warrants that it is the Administrative Agent shall have received on or before noon (San Francisco time) on such Increase Date the following, each dated such date:
(i) (A) a certificate of a Responsible Officer legal and beneficial owner of the Company stating Revolving Loans assigned by it under this Section 2.19(e) and that no Event such Revolving Loans are held by such Decreasing Lender free and clear of Default or Unmatured Event of Default has occurred adverse claims), to each Increasing Lender and is continuingNew Lender participating in the applicable increase in the Total Commitments, or would result and each applicable Increasing Lender and New Lender shall irrevocably acquire from the Commitment IncreaseDecreasing Lenders, (B) instruments executed by each Guarantor reaffirming its respective obligations under the Loan Documents after giving effect to the Commitment Increase, (C) in the event that, after giving effect to such Commitment Increase, a portion of the principal amount of the Term Revolving Loans of each Decreasing Lender (collectively, the “Acquired Portion”) outstanding plus on the aggregate Increase Effective Date (before giving effect to any new Revolving Commitments would exceed the maximum principal Loans made on such date) in an amount secured by the Mortgages, if the Administrative Agent requests, amendments to the Mortgages in form and substance satisfactory to the Administrative Agent increasing the maximum principal amount secured by the Mortgages so such that such amount is not less than the principal amount of the Term Revolving Loans held by each applicable Increasing Lender, New Lender and Revolving Commitments, after giving effect to Decreasing Lender as of the Increase Effective Date shall be held in accordance with each such Commitment Increase, together with Lender’s Percentage (if any) as of such endorsements date. Such assignment and acquisition shall be effective on the Increase Effective Date automatically and without any action required on the part of any party other than the payment by the applicable Increasing Lenders and New Lenders to the related title insurance policies held Administrative Agent for the account of the Decreasing Lenders of an aggregate amount equal to the Acquired Portion, which amount shall be allocated and paid by the Administrative Agent as at or before 12:00 p.m. on the Increase Effective Date to the Decreasing Lenders pro rata based upon the respective reductions in the principal amount of the Revolving Loans held by such Lenders on the Increase Effective Date (before giving effect to any new Revolving Loans made on such date). Each of the Administrative Agent may request and (D) such other approvals, opinions or documents as any Lender through the Administrative Agent may reasonably request in connection with Lenders shall adjust its records accordingly to reflect the Commitment Increase;
(ii) an assumption letter in the form of Annex 2 to Exhibit J duly executed by each New Lender; and
(iii) confirmation from each Increasing Lender payment of the increase Acquired Portion. The payments to be made in the amount of its Revolving Commitment or, if applicable, its Term Commitment, in the form of Annex 1 to Exhibit J.
(f) On each Increase Date, upon fulfillment respect of the conditions set forth in subsection 2.16(e), Acquired Portion shall be made by the Administrative Agent shall notify the applicable Increasing Lenders and the Company, on or before 1:00 p.m. (San Francisco time) by facsimile of the occurrence of the Commitment Increase to be effected on such Increase Date. Each Increasing Lender and each New Lender shall, before 2:00 p.m. (San Francisco time) on the applicable Increase Date, make available Lenders to the Administrative Agent in Dollars in immediately available funds, (A) in funds at or before 11:00 a.m. on the case of any New Lender, an amount equal to (x) in the case of an increase to the Revolving CommitmentsIncrease Effective Date, such payments to be made by the applicable Increasing Lenders and New Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all Revolving Loans then outstanding and (y) in Lenders pro rata based upon the case of the creation of Term Commitments, respective increases in the amount of such New Lender's Term Commitment and (B) in the case of any Increasing Lender, an amount equal to (x) in the case of an increase to the Revolving Commitments, Loan Commitments held by such Lenders on the excess Increase Effective Date.
(f) To the extent any of (1) such Increasing Lender's Revolving Percentage (after giving effect to such Commitment Increase) of all the Revolving Loans then outstanding over (2acquired by the applicable Increasing Lenders and New Lenders from the Decreasing Lenders pursuant to Section 2.19(e) such Increasing Lender's Revolving Percentage (immediately prior to giving effect to such Commitment Increase) of all Revolving above are Eurodollar Loans then outstanding and (y) in the case of the creation of Term Commitments, in the amount of such Increasing Lender's Term Commitment. After the Administrative Agent's receipt of such funds from each Increasing Lender and each New Lender, the Administrative Agent will promptly thereafter cause to be distributed like funds to the other Lenders holding Revolving Loans or Term Loans, as applicable, in an amount to each such Lender such that the aggregate amount owing to each Lender after giving effect to such distribution equals such Lender's ratable share of all Loans then outstanding (calculated after giving effect to such Commitment Increase). If any Increase Effective Date shall occur on a date that is not the last day of the an Interest Period for all such Eurodollar Loans, the Decreasing Lenders shall be entitled to compensation from the Borrower as provided in Section 2.16 (as if Borrower had prepaid such Revolving Loans or Term Loans bearing interest based in an amount equal to the Acquired Portion on the Offshore Rate then outstanding (x) the Company shall pay any amounts owing pursuant to Section 4.4 to any Lender whose proportionate share of any outstanding Offshore Rate Loan is decreased as a result of the distributions to Lenders under this subsection 2.16(fIncrease Effective Date), and (y) for each outstanding Borrowing of Offshore Rate Loans, each Offshore Rate Loan made by the respective Increasing Lenders and New Lenders pursuant to this subsection 2.16(f) shall be deemed to be funded at the applicable Offshore Rate for such Borrowing.
Appears in 1 contract
Samples: Credit Agreement (Fair Isaac Corp)
