Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment. (b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date. (c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c). (d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement. (e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 6 contracts
Samples: Credit Agreement, Credit Agreement (Huntsman CORP), Credit Agreement (Huntsman International LLC)
Revolving Commitment Increase. (a) Notwithstanding anything Upon the satisfaction of the conditions precedent set forth in Section 6 hereof, but immediately after giving effect to the contrary transactions described in Section 12.1, 2(a) hereof and subject to the terms and conditions set forth hereinparagraph (b) of this Section 3, the Borrower Increase shall have become effective. Schedule III hereto sets forth the right from time to time, to cause an increase in the Revolving Commitments portion of the Revolving Lenders (a “Increase of each Revolving Commitment IncreaseIncrease Lender as of the Amendment Effective Date (with respect to each Revolving Commitment Increase Lender, such Revolving Commitment Increase Lender’s “Increase Commitment”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent), each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such this Amendment, the amount of Revolving Commitments of each Revolving Commitment Increase, no Event of Default or Unmatured Event of Default Increase Lender shall have occurred and be continuing as of the effective date of include such Revolving Commitment Increase (such dateLender’s Increase Commitment. Effective as of the Amendment Effective Date, the “each Revolving Commitment Increase DateLender shall be a “Revolving Lender” and a “Lender” under the Credit Agreement and the other Loan Documents, and each Revolving Commitment Increase Lender shall have all the rights and obligations of a “Revolving Lender” and a “Lender” holding a Revolving Commitment or a Revolving Loan under the Credit Agreement and the other Loan Documents. Each Revolving Commitment Increase Lender’s Increase Commitment shall be several and not joint.
(b) On the Amendment Effective Date and after giving effect to the transactions described in Section 2(a) hereof, (i) the aggregate principal amount of Revolving Borrowings outstanding immediately prior to the effectiveness of the Increase (the “Existing Revolving Borrowings”)) shall be deemed to be repaid, (ii) no each Revolving Commitment Increase Lender that shall have had a Revolving Commitment immediately prior to the effectiveness of the Increase shall pay to the Administrative Agent in same day funds an amount equal to the amount, if any, by which (A) (1) such Revolving Commitment Increase shall be in an amount less than $10,000,000 Lender’s Applicable Percentage (unless calculated after giving effect to the Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Commitments then in Borrowings (as defined below) exceeds (B) (1) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated without giving effect is greater than $390,000,000)to the Increase) multiplied by (2) the aggregate principal amount of Existing Revolving Borrowings, (iii) each Revolving Commitment Increase Lender that shall not have had a Revolving Commitment immediately prior to the effectiveness of the Increase shall pay to the Administrative Agent in same day funds an amount equal to (A) such Revolving Commitment Increase Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of the Increase) multiplied by (B) the aggregate principal amount of the Resulting Revolving Borrowings, (iv) after the Administrative Agent receives the funds specified in clauses (ii) and (iii) above, the Administrative Agent shall pay to each Revolving Lender (other than, for the avoidance of doubt, the Revolving Commitment Increase Lender from whom such funds were received) the portion of such funds that is equal to the amount, if any, by which (A) (1) such Revolving Lender’s Applicable Percentage (calculated without giving effect to the effectiveness of the Increase) multiplied by (2) the aggregate principal amount of the Existing Revolving Borrowings exceeds (B) (1) such Revolving Lender’s Applicable Percentage (calculated after giving effect to the effectiveness of the Increase) multiplied by (2) the aggregate principal amount of the Resulting Revolving Borrowings, (v) after the effectiveness of the Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the Existing Revolving Borrowings and of the Types and for the Interest Periods specified in the Borrowing Request delivered pursuant to Section 6(d) hereof, (vi) each Revolving Lender (including, for the avoidance of doubt, each Revolving Commitment Increase Lender) shall be deemed to hold its Applicable Percentage of the Resulting Revolving Borrowings (calculated after giving effect to the effectiveness of the Increase) and (vii) the Borrower shall pay to each Revolving Lender (prior to the effectiveness of the Increase) any and all accrued but unpaid interest on its Loans comprising the Existing Revolving Borrowings, together with any amounts payable pursuant to Section 2.15 of the Credit Agreement in respect of the repayment contemplated by clause (i) of this paragraph (b), in each case as required by and pursuant to the terms of the Credit Agreement. Upon the effectiveness of the Increase, each Revolving Lender immediately prior to the Increase will automatically and without further action be deemed to have assigned to each Revolving Commitment Increase Lender, and each such Revolving Commitment IncreaseIncrease Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit such that, after giving effect to the Increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, in each case held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage.
(c) Each Revolving Commitment Increase Lender, by delivering its signature page to this Amendment on the Amendment Effective Date, shall be deemed to have acknowledged receipt of, and consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent or any Lenders, as applicable on the Amendment Effective Date.
(d) Immediately after giving effect to the consummation of the transactions described in Section 2(a) hereof and this Section 3, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no of each Consenting Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on is set forth opposite such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent name on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreementhereto.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 4 contracts
Samples: Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International Corp), Credit Agreement (Crown Castle International Corp)
Revolving Commitment Increase. (a) Notwithstanding anything to Schedule 1 hereto sets forth the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments portion of the Revolving Lenders (a “Increase of each Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Increase Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of Effective Date (with respect to each Revolving Commitment Increase Lender, such Revolving Commitment Increase (such date, the Lender’s “Increase Commitment”). Each Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Increase Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole several and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendmentjoint.
(b) The Borrower shall provide On the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify Effective Date, (i) the proposed aggregate principal amount of Revolving Commitment Borrowings outstanding immediately prior to the effectiveness of the Increase Date, which date (the “Existing Revolving Borrowings”) shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increasedeemed to be repaid, (ii) each Revolving Commitment Increase Lender shall make such payments to the amount Administrative Agent as are required by clauses (ii) or (iii), as applicable, of Section 2.21(d) of the requested Revolving Commitment Credit Agreement with respect to its portion of the Increase, (iii) the Administrative Agent shall make such payments to the Revolving Lenders as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and are required by clause (iv) of Section 2.21(d) of the Credit Agreement with respect to the Increase, (iv) after the effectiveness of the Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the respective Existing Revolving Commitments Borrowings and of the then existing Types and for the Interest Periods specified in the Borrowing Request delivered pursuant to Section 4(d) hereof, (v) each Revolving Lenders Lender shall hold its Applicable Percentage of the Resulting Revolving Borrowings (calculated after giving effect to the effectiveness of the Increase) and (vi) the New Borrower shall pay to each Revolving Lenders from Lender (prior to the effectiveness of the Increase) any and after all accrued but unpaid interest on its Loans comprising the Existing Revolving Commitment Increase DateBorrowings, together with any amounts payable pursuant to Section 2.16 of the Credit Agreement in respect of the repayment contemplated by clause (i) of this paragraph (b), in each case as required by and pursuant to the terms of the Credit Agreement.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase Lender, by delivering its signature page to this Amendment on the Effective Date, shall become effective on its Revolving Commitment Increase Date be deemed to have acknowledged receipt of, and upon such effectiveness: (i) consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice or any Class of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Effective Date.
Appears in 3 contracts
Samples: Credit Agreement (Crown Castle International Corp), Incremental Facility Amendment (Crown Castle International Corp), Incremental Facility Amendment (Crown Castle International Corp)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed the greater of (x) $50,000,000 and (y) the excess of the Borrowing Base at such time over the Aggregate Commitments at such time; provided that (a) Lead Borrower shall only be permitted to effect five Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $10,000,000 or, if less than $10,000,000 is available, the amount left available (but in any event no less than $5,000,000).
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Lenders hereunder and that are reasonably satisfactory to Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent, Agent may (at the direction of Lead Borrower) promptly notify the Lenders selected by Lead Borrower to provide all or a portion of the Revolving Commitment Increase (it being understood that Lead Borrower shall have no obligation to seek or accept a Revolving Commitment Increase from any existing Lenders) and each Facing Agent and such Lender may (subject to Lead Borrower’s consent) have the Swing Line Lender (each, a “New right to elect to have its Revolving Lender”) or Commitment increased by allowing one or more existing such portion of the requested increase in Revolving Lenders to increase their respective Revolving CommitmentsCommitments as agreed with Lead Borrower; provided that (i) both before each such Lender may decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it so agrees, (ii) if commitments from additional financial institutions are required by Lead Borrower in connection with the Revolving Commitment Increase, any Person or Persons selected by Lead Borrower and immediately after giving effect providing such commitment shall be subject to the written consent of the Administrative Agent, the Swingline Lender and the Issuing Bank (such consent not to be unreasonably withheld, delayed or conditioned), if such consent would be required pursuant to the definition of Eligible Transferee and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) subject to Section 1.03, no Event of Default or Unmatured Event of Default shall have occurred and be continuing or would exist after giving effect thereto; (2) subject to Section 1.03, the representations and warranties under Section 8 shall be true in all material respects and (3) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to Lead Borrower, the Administrative Agent, and the Increase Loan Lenders.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date and (iii) Schedule 2.01(a) shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments (other than (A) any terms and provisions that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of such the Revolving Commitment Increase (immediately prior to the establishment of such dateRevolving Commitment Increase), (B) subject to clause (i) below, the “maturity date and (C) arranger, upfront fees and other similar fees) and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase Date”shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) in no event shall the final maturity date of any Revolving Loans under a Revolving Commitment Increase at the time of establishment thereof be earlier than the Latest Maturity Date that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (ii) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (iii) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (iv) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (v) the Revolving Commitment Increase shall share ratably in an amount less than $10,000,000 (unless the aggregate amount any mandatory prepayments of the Revolving Commitments then in effect is greater than $390,000,000)Loans, (iiivi) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount Pro Rata Percentage of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s of each Lender may be adjusted to give effect to the total Revolving Commitment shall be as increased without by such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Commitment Increase, and (vvii) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Amendment”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed and Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 3 contracts
Samples: Revolving Credit Agreement (VERRA MOBILITY Corp), Revolving Credit Agreement (VERRA MOBILITY Corp), Revolving Credit Agreement (VERRA MOBILITY Corp)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Restatement Effective Date, by notice to cause an increase in the Revolving Commitments Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Revolving Lenders Credit Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00025,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000350,000,000 (the “Incremental Availability”). Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Revolving Credit Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent or by any other bank or other financial institution or institutional lender or investor (ivany such other bank or other financial institution or institutional lender or investor being called an “Additional Revolving Credit Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld) no to such Revolving Credit Lender’s or Additional Revolving Credit Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 12.2(b) for an assignment of Revolving Loans or Revolving Credit Commitments to such Lender or Additional Revolving Credit Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase that may occur on or after to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the Tenth Amendment Effective Date is a single other Loan Documents, executed by Holdings, the Borrower, each Revolving Credit Lender agreeing to provide such Revolving Commitment Increase Increase, if any, each Additional Revolving Credit Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in an aggregate amount not exceeding $200,000,000 on (the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the occurrence of) satisfaction on the Eleventh Amendment date thereof (each, an “Incremental Facility Effective Date. The foregoing clause ”) of each of the conditions set forth in Section 4.2 (iit being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment), compliance with Section 8.5(b) and such other conditions as the following Section 2.10(b) and Section 2.10(e) parties thereto shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 agree. Any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those conditions set forth applicable to the Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 4 2.15, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 12.1 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 12.7 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 3 contracts
Samples: Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.), Credit Agreement (BJ's Wholesale Club Holdings, Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower Closing Date, the Company shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of under the Revolving Lenders U.S. Subfacility or Canadian Subfacility (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $500,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Latest Maturity Date of any Class of Commitments under the applicable Subfacility) and pursuant to the documentation applicable to the applicable Subfacility, (ii) the Company shall only be permitted to request five Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $25,000,000 or, if less than $25,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders hereunder and that are reasonably satisfactory each such Revolving Lender may (subject to the Administrative Agent, each Facing Agent Company’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share under the applicable Subfacility (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the applicable Swingline Lenders and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld or delayed); (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; (iv) neither the funding of the Revolving Commitment Increase nor the existence of the Liens securing such Revolving Commitment Increase would violate the terms of the Senior Notes Indenture; and (v) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (unless 4) the aggregate amount representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date; and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Company, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Credit Agreement (Resolute Forest Products Inc.), Credit Agreement (Resolute Forest Products Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that upon the effectiveness of any Incremental Amendment referred to below, (i) both before and immediately after giving effect subject to such Revolving Commitment IncreaseSection 1.09, no Event of Default or Unmatured Event of Default shall exist and (ii) each Revolving Commitment Increase shall have occurred interest rate margins as determined by the Borrower and the lenders thereunder; provided that if the Applicable Rate (which, for such purposes only, shall be continuing as of the effective date of deemed to include all upfront or similar fees payable to all lenders providing such Revolving Commitment Increase (such date, the “but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith or fees not generally paid to all participating Lenders)) relating to any Revolving Commitment Increase Date”exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees payable to all lenders providing the Revolving Commitment Increase (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith or fees not generally paid to all participating Lenders)) relating to the Revolving Credit Commitments and Revolving Loans immediately prior to the effectiveness of the Incremental Amendment, the Applicable Rate relating to the Revolving Credit Commitments and Revolving Loans immediately prior to the effectiveness of the Incremental Amendment shall be adjusted to be equal to the Applicable Rate (iiwhich, for such purposes only, shall be deemed to include all upfront or similar fees) no payable to all lenders providing such Revolving Commitment Increase (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith or fees not generally paid to all participating Lenders) relating to such Revolving Credit Commitments. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00010,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,00050,000,000 (the “Incremental Availability”). Each notice from the Borrower pursuant to this Section 2.19 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), or by any other bank or other financial institution or institutional lender or investor (ivany such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld) no Revolving to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 9.06 for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase that to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may occur on be necessary or after appropriate, in the Tenth reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and shall, subject to Section 1.09, be subject to the occurrence of) satisfaction on the Eleventh Amendment Effective Date. The foregoing clause date thereof of each of the conditions set forth in Section 3.02 (iit being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 3.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the following Section 2.10(b) and Section 2.10(e) parties thereto shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 agree. Any Revolving Commitment Increase shall be documented as an increase to the applicable Class of Loans and shall be on terms identical to those conditions set forth applicable to such Class, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 4 2.19, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 2.14. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.19 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 2.22 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 9.01 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Abl Credit Agreement (Mattress Firm Group Inc.), Abl Credit Agreement (Mattress Firm Group Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder each party hereto acknowledges and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided agrees that (i) both before and the Extended Revolving Credit Commitments shall be increased by $44,200,000 on the Amendment No. 6 Effective Date (the “Increase”), immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”)Replacement, (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 from and after giving effect to the Increase, (unless x) the aggregate amount of Extended Revolving Credit Commitments shall be $294,200,000 and (y) each Incremental Revolving Credit Lender (to the extent not already a Revolving Commitments then in effect is greater than $390,000,000), Credit Lender under the Credit Agreement) shall for all purposes be deemed an Extended Revolving Credit Lender and (iii) after giving effect the Borrower has elected to such use the Incurrence-Based Incremental Amount to effectuate the increase in Extended Revolving Commitment Increase, the aggregate amount of the Revolving Credit Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendmentcontemplated hereby.
(b) The Borrower shall provide Furthermore, each Revolving Credit Lender party hereto, by delivering its signature page to this Amendment on the Amendment No. 6 Effective Date, (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent with written notice and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes (or, to the extent already a “Notice of Revolving Commitment Increase”Lender under the Credit Agreement, confirms its appointment and authorization of) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of to take such Notice of Revolving Commitment Increaseaction as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, (ii) the amount of the requested Revolving Commitment Increase, (iii) together with such powers as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, are reasonably incidental thereto; and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
agrees (c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loansor, to the extent already a Revolving Credit Lender under the Credit Agreement, confirms its agreement) that there are any Revolving Loans then outstanding, and (ii) undivided participation interests it will perform in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share accordance with their terms all of the Revolving Commitments. Each Revolving Lender shall make any payment obligations which by the terms of the Credit Agreement are required to be made performed by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the as an Extended Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)Credit Lender.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Credit Agreement (Alight, Inc. /DE), Credit Agreement (Alight, Inc. / Delaware)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $50,000,000; provided that (a) the Lead Borrower shall only be permitted to request four Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $10,000,000.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the Lenders hereunder and that are reasonably satisfactory each Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata share (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase, no Event of Default (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lender and the Issuing Bank (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of Eligible Transferee and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the representations and warranties under Section 8 shall be true in an amount less than $10,000,000 all material respects, provided that, solely with respect to Revolving Loans made under the Revolving Commitment Increases that are used to effect or finance a Permitted Acquisition or Investments permitted under this Agreement, the Borrowers shall have the option of making any representations and warranties under Section 8 and determinations as to the availability of any “basket-carveouts” under Section 10 effective as of the date of entering the definitive agreement for such Permitted Acquisition or such Investment in accordance with the Limited Condition Transaction provisions set forth in Section 1.03; (unless 3) the aggregate amount Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (4) the Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Revolving Credit Agreement (PAE Inc), Revolving Credit Agreement (PAE Inc)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of the Revolving Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before at the time of any such request and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless or such lower amount that either
(A) represents all remaining availability under the aggregate amount of limit set forth in the Revolving Commitments then in effect next sentence or (B) is greater than $390,000,000acceptable to the Administrative Agent), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000200,000,000. Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) shall have consented (in each case, (ivnot to be unreasonably withheld or delayed) no Revolving to such Lender’s or Additional Lender’s Revolving Commitment shall Increase, if such consent would be increased without required under Section 9.04(b) for an assignment of Revolving Loans to such Revolving Lender or Additional Lender’s prior written consent (which consent may be given or withheld in . The Arrangers agree, upon the request of the Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such Revolving Lender’s sole and absolute discretion) and (v) the only requested Revolving Commitment Increase Increase; provided that may occur on or after the Tenth Amendment Effective Date is Arrangers’ agreement to use such efforts does not constitute a single commitment to provide any such requested Revolving Commitment Increase Increase.
(b) Commitments in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 respect of Revolving Commitment Increase shall become Revolving Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be those necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, a “Revolving Commitment Increase Closing Date”) of each of the conditions set forth in Section 4 4.01 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.01 shall be deemed to refer to the Eleventh effective date of such Incremental Amendment.
(b) ). The Borrower shall provide may use the Administrative Agent with written notice (a “Notice proceeds of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments Loans provided pursuant to this Section 2.10. Each such Notice of any Revolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall specify (i) the proposed be obligated to provide any Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed unless it so agrees in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Datesole discretion.
(c) On any The Revolving Commitment Increase DateLoans and Revolving Commitments established pursuant to this paragraph shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the Revolving Lenders shall purchase benefits afforded by, this Agreement and assume (the other Loan Documents, and shall, without recourse or warranty) limiting the foregoing, benefit equally and ratably from the Revolving Lenders (i) Revolving Loans, to Guarantees and security interests created by the extent that there are Security Documents. The Loan Parties shall take any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to actions reasonably required by the extent necessary Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding establishment of any such new Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the or any such new Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after After giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, it may be the Borrower shall deliver case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the Administrative Agent a certificate foregoing, on the effective date of the Borrower dated as of applicable Revolving Commitment Increase, the Lenders (including, without limitation, any Additional Lenders) shall make advances among themselves so that after giving effect thereto the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted Loans will be held by the Borrower approving or consenting to such Revolving Commitment Increase and certifying thatLenders (including, before and without limitation, any Additional Lenders), pro rata in accordance with the Pro Rata Percentages hereunder (after giving effect to such the applicable Revolving Commitment Increase, ).
(ie) the representations and warranties contained This Section 2.24 shall supersede any provisions in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Section 2.18 or 9.08 to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Datecontrary.
Appears in 2 contracts
Samples: Revolving Loan Credit Agreement (CDW Finance Corp), Revolving Loan Credit Agreement (CDW Corp)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $50,000,000; provided that (a) the Borrower shall only be permitted to request five (5) Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Borrower) promptly notify the Lenders hereunder and that are reasonably satisfactory each Lender may (subject to the Administrative AgentBorrower’s consent, each Facing Agent not to be unreasonably withheld) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase, no Event of Default (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lender and the Issuing Bank (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of Eligible Assignee and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) the conditions set forth in an amount less than $10,000,000 Section 4.02(a) and (unless b) shall be satisfied; (2) the aggregate amount Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) the Loan Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Loan Documents, customary legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (4) the Borrower shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrower in connection therewith; and (5) such Revolving Commitment Increase shall be permitted under the Second Lien Notes Indenture.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrower, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Loan Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Loan Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Loan Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Credit Agreement (Cenveo, Inc), Credit Agreement (Cenveo, Inc)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1The Lead Borrower and each Increase Loan Lender hereby agree that, subject to the terms and satisfaction of the conditions set forth hereinin Section 7 hereof, on the Amendment No. 1 Effective Date (as defined below), the Borrower Revolving Commitment Increase of such Increase Loan Lender shall have the right from time to time, to cause an increase in become effective and the Revolving Commitments shall be deemed increased by the amount of the Revolving Commitment Increases of such Increase Loan Lenders in the amounts set forth on Schedule 1 hereto. Pursuant to Section 2.15 of the Credit Agreement, the Revolving Commitment Increases shall be Revolving Commitments for all purposes under the Credit Agreement and each of the other Credit Documents and shall have terms identical to the Revolving Commitments outstanding under the Credit Agreement immediately prior to the date hereof (but giving effect to any amendments hereunder).
(b) Each Increase Loan Lender acknowledges and agrees that upon the Amendment No 1. Effective Date, such Increase Loan Lender shall be a “Revolving Commitment Increase”) by adding to this Lender” under, and for all purposes of, the Credit Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line other Credit Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder.
(each, a “New Revolving Lender”c) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after After giving effect to such Revolving Commitment IncreaseIncreases, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, of each Revolving Lender has outstanding Revolving Loans shall be as set forth on Schedule 2 hereto (and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender such Schedule 2 shall make any payment required to be made by it pursuant supersede Schedule 2.01 to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(cCredit Agreement).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (iLender party hereto hereby agrees that notwithstanding Section 2.15(a) of the Administrative Agent shall record in Credit Agreement, for purposes of determining the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice maximum amount of Revolving Commitment Increase) and the Administrative Agent shall distribute Increases permitted to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified be incurred on the Notice Amendment No. 1 Effective Date, any Incremental Term Loans incurred on the Amendment No. 1 Effective Date shall be deemed to be incurred immediately after the incurrence of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this AgreementIncreases contemplated hereby.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Credit Agreement, Credit Agreement (Bway Intermediate Company, Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower Closing Date, the Company shall have the right to request, by written notice to the Administrative Agent, an increase in the Revolving Commitments under any Subfacility or Revolving Commitments under a first-in last-out facility (an “Incremental FILO Facility”) (each, a “Revolving Commitment Increase”) in an aggregate amount such that, after giving effect to any such Revolving Commitment Increase, the aggregate principal amount of all then outstanding Revolving Commitments does not exceed $450,000,000; provided that (i) any Revolving Commitment Increase shall be on the same terms (including the Maturity Date under the applicable Subfacility) and pursuant to the documentation applicable to the applicable Subfacility, except as set forth under the second sentence of Section 2.15(d) and except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Company and the Increase Loan Lenders and except in the case of an Incremental FILO Facility, which shall have terms as may be agreed among the Company and the Increase Loan Lenders (which terms (other than advance rates, revolving or term nature of the facility, pricing, interest rate margins, discounts, premiums, rate floors, and fees) shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental FILO Facility or the covenant set forth in Section 9.12 is made more restrictive on the Company, no consent shall be required from time the Administrative Agent or any Lender to timethe extent that such financial maintenance covenant is also added, or such covenant is made more restrictive, for the benefit of the Lenders, and payments on any such Incremental FILO Facility pursuant to cause Section 10.11 shall be subordinated to payment of all other Obligations other than Secured Bank Product Obligations that are not Secured Reserved Xxxxxx)), (ii) any Revolving Commitment Increase shall be in a minimum amount of $25,000,000 or, if less than $25,000,000 is available, the amount left available, (iii) the North American Minimum Requirement shall be met at all times, and (iv) the aggregate amount of Incremental FILO Facilities shall not exceed $35,000,000.
(b) Each notice submitted pursuant to this Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (i) the amount of the increase in the Revolving Commitments being requested and (ii) the Subfacility or Subfacilities under which such Revolving Commitments are being requested to be increased or if such Revolving Commitment Increase will take the form of an Incremental FILO Facility. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to the Company’s consent, which consent the Company may exercise in its sole discretion (it is understood that the Company shall not be obligated to notify any existing Revolving Lender of any request for a Revolving Credit Increase or consent to any existing Revolving Lender’s participation in any such Revolving Commitment Increase) have the right to elect to have its Revolving Commitment increased by its Pro Rata Percentage under the applicable Subfacility or Subfacilities (it being understood and agreed that (x) a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Percentage under the applicable Subfacility or Subfacilities in its discretion if any other Lender declines to participate in the Revolving Commitment Increase and (y) the Company may elect to offer, or consent to, an increase in the Revolving Commitments of any Lender on a basis that is less than its Pro Rata Percentage under the Revolving Lenders (a “applicable Subfacility or Subfacilities of such Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to of the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase or the Company does not consent to or request the participation of a Revolving Lender in any such Revolving Commitment) and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment (such additional financial institutions “Additional Lenders”) shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the applicable Swingline Lenders and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld, conditioned or delayed) if such consent would be required under Section 12.04 for an assignment of the commitments to such Additional Lender; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Borrowers shall execute and deliver or cause to be executed and delivered to the Administrative Agent, to the extent required by the Lenders and Additional Lenders providing such Revolving Commitment Increases, customary closing certificates, legal opinions, good standing certificates, resolutions and organizational documents of the type and form delivered on the Closing Date; (4) the representations and warranties contained in Section 7 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date (except to the extent such representations and warranties specifically relate to an amount less earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders all fees and expenses required to be paid in connection with any such Revolving Commitment Increase to the Administrative Agent and the Lenders providing such Revolving Commitment Increase shall have been paid to the extent due and owing and, with respect to expenses, to the extent invoices have been received no later than $10,000,000 three Business Days prior to the proposed Increase Date.
(unless c) On the aggregate amount Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as described in Section 2.15, the terms and provisions of the Revolving Commitment Increase (other than an Incremental FILO Facility) shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the pricing applicable to the Revolving Commitment Increase (x) not in the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders but the Applicable Margins and the Unused Line Fee Rate under the then existing Revolving Commitment Increase shall be increased to be consistent with that for such Revolving Commitment Increase and (y) in effect is greater the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders thereunder but shall not include any “most favored nation” pricing provisions, (ii) the Revolving Commitment Increase (other than $390,000,000)an Incremental FILO Facility) shall share ratably in any mandatory prepayments of the Revolving Loans, (iii) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, be reduced or increased (as applicable) based on each Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities and (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld other than as set forth in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase second parenthetical in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and of Section 2.15(a) with respect to any Incremental FILO Facility, the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank equal in Section 4 right of payment and security with and shall benefit from the Eleventh Amendment.
(b) The Borrower shall provide same guarantees as the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and Loans. The Incremental FILO Facility may have a separate borrowing base against assets of a type included in the New Revolving Lenders from and after Borrowing Base or may be Incurred in amounts that have no relationship to a borrowing base or the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Dateassets included in the Borrowing Base; provided, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loansthat, to the extent that the Incremental FILO Facility is a revolving facility and there are at any Revolving Loans then outstandingtime after the effectiveness of such facility, and commitments thereunder to be borrowed against, any Borrowing under this Agreement shall be required to be made first under the Incremental FILO Facility until there is no longer any borrowing availability thereunder (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, including to the extent necessary that the amount of any borrowing availability is capped by the size of a borrowing base) prior to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of being permitted be made under the Revolving Commitments. Each Revolving Lender shall make joinder agreement and any payment required amendment to be made any Credit Document requested by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on in connection with the establishment of the Revolving Commitment Increase Date. Each existing Revolving Lender may, without the consent of any of the Lenders, effect such amendments to this Agreement (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the an “Incremental Revolving Commitment Increase Date Agreement”) and (ii) agrees to take any further steps the other Credit Documents as may be reasonably requested by the Administrative Agentnecessary or appropriate, in each case to the extent deemed necessary by opinion of the Administrative Agent and the Company, to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Credit Agreement (SunOpta Inc.), Credit Agreement (SunOpta Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00025,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,00075,000,000 (the “Incremental Availability”). Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent or by any other bank or other financial institution or institutional lender or investor (ivany such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld) no Revolving to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase that to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may occur on be necessary or after appropriate, in the Tenth reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and shall be subject to the occurrence of) satisfaction on the Eleventh Amendment date thereof (each, an “Incremental Facility Effective Date. The foregoing clause ”) of each of the conditions set forth in Section 4.2 (iit being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the following Section 2.10(b) and Section 2.10(e) parties thereto shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 agree. Any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those conditions set forth applicable to the Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 4 2.15, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 12.1 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 12.7 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 2 contracts
Samples: Credit Agreement (Chinos Holdings, Inc.), Credit Agreement (J Crew Group Inc)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in each party hereto acknowledges and agrees that (a) the Revolving Credit Commitments of shall be increased by $285,000,000 on the Revolving Lenders Amendment No. 1 Effective Date (a the “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent), each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increasethe Replacement, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, (i) the aggregate amount of Revolving Credit Commitments shall be $785,000,000, (ii) each Incremental Revolving Credit Lender (to the extent not already a Revolving Credit Lender under the Credit Agreement) shall for all purposes be deemed a Revolving Credit Lender, (iii) the Revolving Credit Lenders and L/C Issuer shall have the Revolving Credit Commitments and L/C Commitments, respectively, set forth opposite their respective names in Schedule 3 to this Amendment and (iv) such Schedule 3 shall replace in its entirety the portion of the table contained under the captions “Revolving Credit Commitments” and “L/C Commitments” set forth in Schedule 1.01(A) to the Credit Agreement and replace and supersede Schedule 1 hereto in its entirety, (c) the Borrower has elected to use the Incurrence-Based Incremental Amount to effectuate the increase in Revolving Credit Commitments contemplated hereby, (d) each Revolving Credit Lender has outstanding Revolving Loans (after giving effect to the Replacement and the Increase) shall be deemed to have purchased from Bank of America, N.A., as the L/C Issuer in respect of the existing Letters of Credit set forth on Schedule 2 to this Amendment (the “Existing Letters of Credit”) a risk participation interests in outstanding LC Obligations and Swing Line Loans each such Existing Letter of Credit in an amount equal to its the product of such Lender’s Pro Rata Share of the Revolving Commitments. Each Credit Commitments as set forth on Schedule 3 to this Amendment times the amount of such Letter of Credit, in each case, in accordance with Section 2.03(b) of the Credit Agreement, which such risk participations, for the avoidance of doubt, will replace in their entirety any risk participations in such Existing Letters of Credit held by the Existing Revolving Lender shall make any payment required to be made by it pursuant Credit Lenders immediately before giving effect to the preceding sentence via wire transfer Replacement and the Increase, and (e) each Existing Letter of Credit shall be deemed issued under the Revolving Credit Facility, as amended to give effect to the Replacement and the Increase. Furthermore, each Lender party hereto, by delivering its signature page to this Amendment on the Amendment No. 1 Effective Date, (i) confirms that it has received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement; (iii) appoints and authorizes (or, to the extent already a Lender under the Credit Agreement, confirms its appointment and authorization of) the Administrative Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent on by the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date terms thereof, together with such powers as are reasonably incidental thereto; and (iiiv) agrees to take any further steps reasonably requested by the Administrative Agent(or, in each case to the extent deemed necessary already a Revolving Credit Lender under the Credit Agreement, confirms its agreement) that it will perform in accordance with their terms all of the obligations which by the Administrative Agent to effectuate the provisions terms of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall Credit Agreement are required to be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made performed by it are true and correct on and as of the a Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase DateCredit Lender.
Appears in 2 contracts
Samples: Amendment No. 1 (PF2 SpinCo, Inc.), Amendment No. 1 (Change Healthcare Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower Closing Date, the Company shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of under the Revolving Lenders U.S. Subfacility or Canadian Subfacility (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $500,000,000; provided that (i) any Revolving Commitment Increase shall be on the terms (including the Latest Maturity Date of any Class of Commitments under the applicable Subfacility) and pursuant to the documentation applicable to the applicable Subfacility, (ii) the Company shall only be permitted to request five Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $25,000,000 or, if less than $25,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company)will promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to the Company’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share under the applicable Subfacility (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Revolving Commitment Increase) of the requested increase in Revolving Commitments which may be provided (solely in the Company’s discretion, subject to the consent requirements below) by existing Revolving Lenders or additional financial institutions; provided that (i) each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from; (ii) any additional financial institutions are required in connection withproviding any portion of the Revolving Commitment Increase, any Person or Persons providing such commitment shall be subject to the written consent of the Administrative Agent, the applicable Swingline Lenders and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld or delayed); (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; (iv) neither the funding of the Revolving Commitment Increase nor the existence of the Liens securing such Revolving Commitment Increase would violate the terms of the Senior Notes Indenture; and (v) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default would exist after giving effect thereto; (2) the representations and warranties made by the Credit Parties under each of the Credit Documents shall be true in all material respects, provided that, solely with respect to Revolving Loans made under the Revolving Commitment Increases that are used to effect or finance a Permitted Acquisition or Investments permitted and/or not prohibited under this Agreement, the Borrowers shall have the option of making any representations and warranties under the Credit Documents (other than any Specified Representations) and determinations as to the availability of any “basket-carveouts” under Section 10 effective as of the relevant LCT Test Date; (3) the Revolving Commitment Increase shall be effected pursuant to one or more additional Eligible Assignees that are not already Revolving Lenders hereunder joinder agreements executed and that are delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (34) the Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent, each Facing ; (45) the representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date; and (56) the Borrowers shall have paid to the Administrative Agent and the Swing Line Lender Increase Loan Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(eachc) On the Increase Date, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that upon fulfillment of the conditions set forth in this Section 2.15, (i) both before and immediately after giving the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to such the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, no Event of Default or Unmatured Event of Default (ii) the Administrative Agent shall have occurred notify the Lenders and be continuing as Credit Parties of the effective date occurrence of such the Revolving Commitment Increase to be effected on the Increase Date, (such dateiii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the “expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase Date”), and requesting a Note.
(iid) no such The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in an amount less than $10,000,000 (unless the aggregate amount any mandatory prepayments of the Revolving Commitments then in effect is greater than $390,000,000)Loans, (iiiiv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Company, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of the Revolving Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before at the time of any such request and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless or such lower amount that either (A) represents all remaining availability under the aggregate amount of limit set forth in the Revolving Commitments then in effect next sentence or (B) is greater than $390,000,000acceptable to the Administrative Agent), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000100,000,000. Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) shall have consented (in each case, (ivnot to be unreasonably withheld or delayed) no Revolving to such Lender’s or Additional Lender’s Revolving Commitment shall Increase, if such consent would be increased without required under Section 9.04(b) for an assignment of Revolving Loans to such Revolving Lender or Additional Lender’s prior written consent (which consent may be given or withheld in . The Arrangers agree, upon the request of the Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such Revolving Lender’s sole and absolute discretion) and (v) the only requested Revolving Commitment Increase Increase; provided that may occur on or after the Tenth Amendment Effective Date is Arrangers’ agreement to use such efforts does not constitute a single commitment to provide any such requested Revolving Commitment Increase Increase.
(b) Commitments in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 respect of Revolving Commitment Increase shall become Revolving Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be those necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Revolving Commitment Increase Closing Date”) of each of the conditions set forth in Section 4 4.01 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.01 shall be deemed to refer to the Eleventh effective date of such Incremental Amendment.
(b) ). The Borrower shall provide may use the Administrative Agent with written notice (a “Notice proceeds of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments Loans provided pursuant to this Section 2.10. Each such Notice of any Revolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall specify (i) the proposed be obligated to provide any Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed unless it so agrees in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Datesole discretion.
(c) On any The Revolving Commitment Increase DateLoans and Revolving Commitments established pursuant to this paragraph shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the Revolving Lenders shall purchase benefits afforded by, this Agreement and assume (the other Loan Documents, and shall, without recourse or warranty) limiting the foregoing, benefit equally and ratably from the Revolving Lenders (i) Revolving Loans, to Guarantees and security interests created by the extent that there are Security Documents. The Loan Parties shall take any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to actions reasonably required by the extent necessary Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding establishment of any such new Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the or any such new Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after After giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, it may be the Borrower shall deliver case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the Administrative Agent a certificate foregoing, on the effective date of the Borrower dated as of applicable Revolving Commitment Increase, the Lenders (including, without limitation, any Additional Lenders) shall make advances among themselves so that after giving effect thereto the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted Loans will be held by the Borrower approving or consenting to such Revolving Commitment Increase and certifying thatLenders (including, before and without limitation, any Additional Lenders), pro rata in accordance with the Pro Rata Percentages hereunder (after giving effect to such the applicable Revolving Commitment Increase, ).
(ie) the representations and warranties contained This Section 2.24 shall supersede any provisions in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Section 2.18 or 9.08 to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Datecontrary.
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of under the Revolving Lenders applicable Subfacility (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $750,000,000; provided that (i) any Revolving Commitment Increase for such Subfacility shall be on the terms (including the Latest Maturity Date of any Class of Commitments under such Subfacility) and pursuant to the documentation applicable to such Subfacility, (ii) the Lead Borrower shall only be permitted to request five (5) Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $50,000,000 or, if less than $50,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the applicable Revolving Lenders hereunder and that are reasonably satisfactory each such Revolving Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share under the applicable Subfacility (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lenders and the Issuing Banks (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of “Eligible Transferee”; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default would exist after giving effect thereto except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition shall waive this requirement as part of customary “sungard” limitations; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (unless 4) the aggregate amount representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition may agree to limit this requirement to certain of the representations and warranties; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as set forth in clause (e) below, the terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement2.15.
(e) As Notwithstanding the foregoing, up to $75,000,000 of a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by permitted pursuant to this Section 2.15 may be in the form of a Responsible Officer “first-in, last-out” tranche so long as such “first-in, last-out” tranche is established within 18 months of the Borrower certifying and attaching Closing Date; provided that the resolutions adopted by aggregate amount of any such “first-in, last-out” tranche plus the Borrower approving aggregate amount of Indebtedness incurred pursuant to Section 10.04(viii) shall not exceed $115,000,000. Revolving Commitment Increase Notice will stipulate that all or consenting to a portion of such Revolving Commitment Increase will be a “first-in, last-out” tranche, as well as the terms and certifying thatconditions of such “first-in, before last-out” tranche, that shall be customary for such type of tranche in the Lead Borrower’s reasonable determination and after giving effect otherwise will be agreed between the Lead Borrower and the Lenders providing the “first-in, last-out” tranche subject to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as consent of the Revolving Commitment Increase Date, except to the extent Administrative Agent; provided that such representations “first-in, last-out” tranche will have a term of 3 years and warranties specifically refer shall not amortize during the first year. Any such “first-in, last-out” tranche shall be established pursuant to an earlier date amendment to this Agreement among the Borrowers, the Administrative Agent and each Lender providing the “first-in, last-out” tranche (ii) no Event but which shall not require the consent of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Dateany other Lender).
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of under the Revolving Lenders applicable Subfacility (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $450,000,000; provided that (i) any Revolving Commitment Increase for such Subfacility shall be on the terms (including the Latest Maturity Date of any Class of Commitments under such Subfacility) and pursuant to the documentation applicable to such Subfacility, (ii) the Lead Borrower shall only be permitted to request five (5) Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $50,000,000 or, if less than $50,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the applicable Revolving Lenders hereunder and that are reasonably satisfactory each such Revolving Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share under the applicable Subfacility (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lenders and the Issuing Banks (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of “Eligible Transferee”; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default would exist after giving effect thereto except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition shall waive this requirement as part of customary “sungard” limitations; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (unless 4) the aggregate amount representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition may agree to limit this requirement to certain of the representations and warranties; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as set forth in clause (e) below, the terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement2.15.
(e) As Notwithstanding the foregoing, up to $75,000,000 of a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by permitted pursuant to this Section 2.15 may be in the form of a Responsible Officer “first-in, last-out” tranche so long as such “first-in, last-out” tranche is established within 18 months of the Borrower certifying and attaching Closing Date; provided that the resolutions adopted by aggregate amount of any such “first-in, last-out” tranche plus the Borrower approving aggregate amount of Indebtedness incurred pursuant to Section 10.04(viii) shall not exceed $115,000,000. The Revolving Commitment Increase Notice will stipulate that all or consenting to a portion of such Revolving Commitment Increase will be a “first-in, last-out” tranche, as well as the terms and certifying thatconditions of such “first-in, before last-out” tranche, that shall be customary for such type of tranche in the Lead Borrower’s reasonable determination and after giving effect otherwise will be agreed between the Lead Borrower and the Lenders providing the “first-in, last-out” tranche subject to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as consent of the Revolving Commitment Increase Date, except to the extent Administrative Agent; provided that such representations “first-in, last-out” tranche will have a term of 3 years and warranties specifically refer shall not amortize during the first yearmature on a date later than the Maturity Date. Any such “first-in, last-out” tranche shall be established pursuant to an earlier date amendment to this Agreement among the Borrowers, the Administrative Agent and each Lender providing the “first-in, last-out” tranche (ii) no Event but which shall not require the consent of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Dateany other Lender).
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of the Revolving Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before at the time of any such request and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless or such lower amount that either (A) represents all remaining availability under the aggregate amount of limit set forth in the Revolving Commitments then in effect next sentence or (B) is greater than $390,000,000acceptable to the Administrative Agent), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000300,000,000. Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) shall have consented (in each case, (ivnot to be unreasonably withheld or delayed) no Revolving to such Lender’s or Additional Lender’s Revolving Commitment shall Increase, if such consent would be increased without required under Section 9.04(b) for an assignment of Revolving Loans to such Revolving Lender or Additional Lender’s prior written consent (which consent may be given or withheld in . The Arrangers agree, upon the request of the Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such Revolving Lender’s sole and absolute discretion) and (v) the only requested Revolving Commitment Increase Increase; provided that may occur on or after the Tenth Amendment Effective Date is Arrangers’ agreement to use such efforts does not constitute a single commitment to provide any such requested Revolving Commitment Increase Increase.
(b) Commitments in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 respect of Revolving Commitment Increase shall become Revolving Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be those necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, a “Revolving Commitment Increase Closing Date”) of each of the conditions set forth in Section 4 4.01 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.01 shall be deemed to refer to the Eleventh effective date of such Incremental Amendment.
(b) ). The Borrower shall provide may use the Administrative Agent with written notice (a “Notice proceeds of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments Loans provided pursuant to this Section 2.10. Each such Notice of any Revolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall specify (i) the proposed be obligated to provide any Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving unless it so agrees in its sole discretion. Any Lender that has agreed in writing fails to respond to a request to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Dateshall be deemed to have declined such request.
(c) On any The Revolving Commitment Increase DateLoans and Revolving Commitments established pursuant to this paragraph shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the Revolving Lenders shall purchase benefits afforded by, this Agreement and assume (the other Loan Documents, and shall, without recourse or warranty) limiting the foregoing, benefit equally and ratably from the Revolving Lenders (i) Revolving Loans, to guarantees and security interests created by the extent that there are Security Documents. The Loan Parties shall take any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to actions reasonably required by the extent necessary Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding establishment of any such new Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the or any such new Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after After giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, it may be the Borrower shall deliver case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the Administrative Agent a certificate foregoing, on the effective date of the Borrower dated as of applicable Revolving Commitment Increase, the Lenders (including, without limitation, any Additional Lenders) shall make advances among themselves so that after giving effect thereto the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted Loans will be held by the Borrower approving or consenting to such Revolving Commitment Increase and certifying thatLenders (including, before and without limitation, any Additional Lenders), pro rata in accordance with the Pro Rata Percentages hereunder (after giving effect to such the applicable Revolving Commitment Increase, ).
(ie) the representations and warranties contained This Section 2.24 shall supersede any provisions in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Section 2.18 or 9.08 to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Datecontrary.
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower ClosingSecond Amendment Effective Date, the Company shall have the right to request, by written notice to the Administrative Agent, an increase in the Revolving Commitments under any Subfacility or Revolving Commitments under a first-in last-out facility (an “Incremental FILO Facility”) (each, a “Revolving Commitment Increase”) in an aggregate amount such that, after giving effect to any such Revolving Commitment Increase, the aggregate principal amount of all then outstanding Revolving Commitments does not exceed $450,000,000435,000,0002; provided that (i) any Revolving Commitment Increase shall be on the same terms (including the Maturity Date under the applicable Subfacility) and pursuant to the documentation applicable to the applicable Subfacility, except as set forth under the second sentence of Section 2.15(d) and except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Company and the Increase Loan Lenders and except in the case of an Incremental FILO Facility, which shall have terms as may be agreed among the Company and the Increase Loan Lenders (which terms (other than advance rates, revolving or term nature of the facility, pricing, interest rate margins, discounts, premiums, rate floors, and fees) shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental FILO Facility or the covenant set forth in Section 9.12 is made more restrictive on the Company, no consent shall be required from time the Administrative Agent or any Lender to timethe extent that such financial maintenance covenant is also added, or such covenant is made more restrictive, for the benefit of the Lenders, and payments on any such Incremental FILO Facility pursuant to cause Section 10.11 shall be subordinated to payment of all other Obligations other than Secured Bank Product Obligations that are not Secured Reserved Xxxxxx)), (ii) any Revolving Commitment Increase shall be in a minimum amount of $25,000,00015,000,000 or, if less than $25,000,00015,000,000 is available, the amount left available; provided that increases in U.S. Tranche B Revolving Commitments under the U.S. Tranche B Subfacility shall be in a minimum amount of $15,000,000, (iii) the North American Minimum Requirement shall be met at all times, and (iv) the aggregate amount of Incremental FILO Facilitiesincreases in U.S. Tranche B Revolving Commitments under the U.S. Tranche B Subfacility shall not exceed $35,000,00020,000,000 in the aggregate.
(b) Each notice submitted pursuant to this Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (i) the amount of the increase in the Revolving Commitments being requested and (ii) the Subfacility or Subfacilities under which such Revolving Commitments are being requested to be increased or if such Revolving Commitment Increase will take the form of an Incremental FILO Facility. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to the Company’s consent, which consent the Company may exercise in its sole discretion (it is understood that the Company shall not be obligated to notify any existing Revolving Lender of any request for a Revolving Credit Increase or consent to any existing Revolving Lender’s participation in any such Revolving Commitment Increase) have the right to elect to have its Revolving Commitment increased by its Pro Rata Percentage under the applicable Subfacility or Subfacilities (it being understood and agreed that (x) a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Percentage under the applicable Subfacility or Subfacilities in its discretion if any other Lender declines to participate in the Revolving Commitment Increase and (y) the Company may elect to offer, or consent to, an increase in the Revolving Commitments of any Lender on a basis that is less than its Pro Rata Percentage under the Revolving Lenders (a “applicable Subfacility or Subfacilities of such Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to of the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase or the Company does not consent to or request the participation of a Revolving Lender in any such Revolving Commitment) and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment (such additional financial institutions “Additional Lenders”) shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the applicable Swingline Lenders and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld, conditioned or delayed) if such consent would be required under Section 12.04 for an assignment of the commitments to such Additional Lender; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Borrowers shall execute and deliver or cause to be executed and delivered to the Administrative Agent, to the extent required by the Lenders and Additional Lenders providing such Revolving Commitment Increases, customary closing certificates, legal opinions, good standing certificates, resolutions and organizational documents of the type and form delivered on the Closing Date; (4) the representations and warranties contained in Section 7 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date (except to the extent such representations and warranties specifically relate to an amount less earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders all fees and expenses required to be paid in connection with any such Revolving Commitment Increase to the Administrative Agent and the Lenders providing such Revolving Commitment Increase shall have been paid to the extent due and owing and, with respect to expenses, to the extent invoices have been received no later than $10,000,000 three Business Days prior to the proposed Increase Date. _________________________________________ 2 Reduced by the current FILO.
(unless c) On the aggregate amount Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as described in Section 2.15, the terms and provisions of the Revolving Commitment Increase (other than an Incremental FILO Facility) shall be identical to the Revolving Loans and the Revolving Commitments under the applicable Subfacility and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the pricing applicable to the Revolving Commitment Increase (x) not in the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders but the Applicable Margins and the Ex-FILO Unused Line Fee Rate under the then existing Revolving Commitment Increase shall be increased to be consistent with that for such Revolving Commitment Increase and (y) in effect is greater the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders thereunder but shall not include any “most favored nation” pricing provisions, (ii) the Revolving Commitment Increase (other than $390,000,000)an Incremental FILO Facility) shall share ratably in any mandatory prepayments of the Revolving Loans under the applicable Subfacility, (iii) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, be reduced or increased (as applicable) based on each Lender’s Pro Rata Percentage under the applicable Subfacility or Subfacilities and (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld other than as set forth in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase second parenthetical in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and of Section 2.15(a) with respect to any Incremental FILO Facility, the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall rank equal in right of payment and security with and shall benefit from the same guarantees as the existing Revolving Loans. The Incremental FILO Facility may have a separate borrowing base against assets of a type included in the Borrowing Base or may be those conditions set forth Incurred in Section 4 amounts that have no relationship to a borrowing base or the assets included in the Borrowing Base; provided, that, to the extent the Incremental FILO Facility is a revolving facility and there are at any time after the effectiveness of such facility, commitments thereunder to be borrowed against, any Borrowing under this Agreement shall be required to be made first under the Eleventh Amendment.
Incremental FILO Facility until there is no longer any borrowing availability thereunder (bincluding to the extent that the amount of any borrowing availability is capped by the size of a borrowing base) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention prior to increase being permitted be made under the Revolving Commitments pursuant to this Section 2.10under the applicable Subfacility. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Company, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject A. Subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, time to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000290,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, 300,000,000 and (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment).
(b) B. The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) C. On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date or Revolver Extension Effective Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) D. Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) E. As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (Huntsman CORP)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent, request one or more increases in the Revolving Commitments amount of the Revolving Lenders Credit Commitments (each such increase, a “Revolving Commitment Increase”) by adding ); provided that both at the time of any such request and upon the effectiveness of any Revolving Commitment Amendment referred to below, no Default or Event of Default shall exist and the Borrower shall be in Pro Forma Financial Covenant Compliance. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Agreement one or more additional Eligible Assignees that are not already Section shall set forth the requested amount and proposed effective date of the relevant Revolving Lenders hereunder Commitment Increase. Revolving Commitment Increases may be provided by any existing Lender (and that are each existing Revolving Credit Lender will have the right, but no obligation, to provide a portion of any Revolving Commitment Increase, in each case on terms permitted in this Section 2.24 and otherwise on terms reasonably satisfactory acceptable to the Administrative Agent) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Revolving Credit Lender”); provided that the Administrative Agent, the Borrower and each Issuing Bank shall have consented (not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Revolving Credit Lender’s making such Revolving Commitment Increase if such consent would be required under Section 9.04(b) for an assignment of Revolving Credit Commitments, as applicable, to such Lender or Additional Revolving Credit Lender. Revolving Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (a “Revolving Commitment Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Facing Lender agreeing to provide such Commitment, if any, each Additional Revolving Credit Lender, if any, and the Administrative Agent. The Revolving Commitment Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Swing Line Lender (eachBorrower, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such the provisions of this Section. The effectiveness of any Revolving Commitment Increase, no Event Amendment shall be subject to the satisfaction on the date thereof of Default each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of each Borrowing” or Unmatured Event of Default similar language in such Section 4.01 shall have occurred and be continuing as of deemed to refer to the effective date of such Revolving Commitment Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the Revolving Commitment Increases solely for general corporate purposes of the Borrower and its Subsidiaries. No Lender shall be obligated to provide any Revolving Commitment Increases unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (such dateeach, the a “Revolving Commitment Increase DateLender”)) in respect of such increase, (ii) no and each such Revolving Commitment Increase shall Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in an amount less than $10,000,000 outstanding Letters of Credit such that (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iiia) after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Credit Lender (including each such Revolving Commitment Increase, Increase Lender) will equal the percentage of the aggregate amount Revolving Credit Commitments of the all Revolving Commitments shall not exceed $600,000,000, (iv) no Credit Lenders represented by such Revolving Credit Lender’s Revolving Commitment shall be increased without Credit Commitment, and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Lender’s Loans shall on or prior written consent (which consent may be given or withheld in to the effectiveness of such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid. The Administrative Agent and the Lenders hereby agree that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in an aggregate amount this Agreement shall not exceeding $200,000,000 on (and subject apply to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable transactions effected pursuant to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendmentimmediately preceding sentence.
(b) The Borrower This Section 2.24 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 2.18 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 9.08 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the First Amendment Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that subject to the Limited Condition Acquisition provisions, at the time of any such Revolving Commitment Increase (i) both before and immediately after giving effect to such thereto), no Default or Event of Default (or, in the case of any Revolving Commitment IncreaseIncrease to be used to fund a Limited Condition Acquisition, no Event of Default under Section 10.1(a) or Unmatured Event of Default shall have occurred and be continuing Section 10.1(f) as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Transaction Agreement Date”), (ii) no such shall exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 20,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00020,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000100,000,000 (the “Incremental Availability”), and the Borrower may make a maximum of five (iv5) such requests. Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other Person constituting an Eligible Assignee (any such other Person being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that may occur on all references to “the date of such Loan or after Issuance” or similar language in such Section 4.2 shall be deemed to refer to the Tenth Amendment Effective Date is a single effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The representations and warranties contained in the Loan Documents (or, in the case of any Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on used to fund a Permitted Acquisition or similar permitted Investment (and subject to including any Limited Condition Acquisition), the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(eSpecified Representations) shall not be applicable accurate in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) before and after the 2014 Revolving Commitment Increase effectiveness of any Incremental Amendment referred to below and the only conditions to the 2014 any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those conditions set forth applicable to the Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases only as permitted pursuant to Section 4 8.9 hereof. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.15, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 12.1 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 12.7 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the ClosingAmendment No. 3 Effective Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $50,000,000; provided that (a) the Lead Borrower shall only be permitted to request four Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $10,000,000.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the Lenders hereunder and that are reasonably satisfactory each Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata share (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase, no Event of Default (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lender and the Issuing Bank (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of Eligible Transferee and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the representations and warranties under Section 8 shall be true in an amount less than $10,000,000 all material respects, provided that, solely with respect to Revolving Loans made under the Revolving Commitment Increases that are used to effect or finance a Permitted Acquisition or Investments permitted under this Agreement, the Borrowers shall have the option of making any representations and warranties under Section 8 and determinations as to the availability of any “basket-carveouts” under Section 10 effective as of the date of entering the definitive agreement for such Permitted Acquisition or such Investment in accordance with the Limited Condition Transaction provisions set forth in Section 1.03; (unless 3) the aggregate amount Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (4) the Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (PAE Inc)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Rockwood Acquisition Closing Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 2013 Revolving Commitment Increase and the only conditions to the 2014 2013 Revolving Commitment Increase shall be those conditions set forth in the Tenth Amendment and in Section 4 of the Eleventh Amendment5.5.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) in an aggregate amount not to exceed (x) $100,000,000 less (y) the amount of any Incremental Term Loans incurred by adding the Borrowers after the Closing Date (excluding Incremental Term Loans incurred under the Ratio-Based Incremental Facility); provided that (a) the Lead Borrower shall only be permitted to request 3 Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $25,000,000.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the Lenders hereunder and that are reasonably satisfactory each Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata share (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase, no Event of Default (ii) if any Lender declines to participate in any Revolving Commitment Increase and, as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lender and the Issuing Bank (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of Eligible Transferee and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; and (unless 4) the aggregate amount Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Loan Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of under the Revolving Lenders applicable Subfacility (other than the U.S. FILO Subfacility) (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $450,000,000; provided that (i) any Revolving Commitment Increase for such Subfacility shall be on the terms (including the Latest Maturity Date of any Class of Commitments under such Subfacility) and pursuant to the documentation applicable to such Subfacility, (ii) the Lead Borrower shall only be permitted to request five (5) Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $50,000,000 or, if less than $50,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the applicable Revolving Lenders hereunder and that are reasonably satisfactory each such Revolving Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share under the applicable Subfacility (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lenders and the Issuing Banks (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of “Eligible Transferee”; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default would exist after giving effect thereto except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition shall waive this requirement as part of customary “sungard” limitations; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (unless 4) the aggregate amount representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition may agree to limit this requirement to certain of the representations and warranties; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as set forth in clause (e) below, the terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement2.15.
(e) As Notwithstanding the foregoing, up to $75,000,000 of a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by permitted pursuant to this Section 2.15 may be in the form of a Responsible Officer “first-in, last-out” tranche; provided that the aggregate amount of any such “first-in, last-out” tranche plus the Borrower certifying and attaching the resolutions adopted by the Borrower approving aggregate amount of Indebtedness incurred pursuant to Section 10.04(viii) shall not exceed $115,000,000. The Revolving Commitment Increase Notice will stipulate that all or consenting to a portion of such Revolving Commitment Increase will be a “first-in, last-out” tranche, as well as the terms and certifying thatconditions of such “first-in, before last-out” tranche, that shall be customary for such type of tranche in the Lead Borrower’s reasonable determination and after giving effect otherwise will be agreed between the Lead Borrower and the Lenders providing the “first-in, last-out” tranche subject to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as consent of the Revolving Commitment Increase Date, except to the extent Administrative Agent; provided that such representations and warranties specifically refer “first-in, last-out” tranche shall not mature on a date later than the Maturity Date. Any such “first-in, last-out” tranche shall be established pursuant to an earlier date amendment to this Agreement among the Borrowers, the Administrative Agent and each Lender providing the “first-in, last-out” tranche (ii) no Event but which shall not require the consent of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Dateany other Lender).
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of the Revolving Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before at the time of any such request and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless or such lower amount that either (A) represents all remaining availability under the aggregate amount of limit set forth in the Revolving Commitments then in effect next sentence or (B) is greater than $390,000,000acceptable to the Administrative Agent), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000300,000,000. Each notice from the Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) shall have consented (in each case, (ivnot to be unreasonably withheld or delayed) no Revolving to such Lender’s or Additional Lender’s Revolving Commitment shall Increase, if such consent would be increased without required under Section 9.04(b) for an assignment of Revolving Loans to such Revolving Lender or Additional Lender’s prior written consent (which consent may be given or withheld in . The Arrangers agree, upon the request of the Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such Revolving Lender’s sole and absolute discretion) and (v) the only requested Revolving Commitment Increase Increase; provided that may occur on or after the Tenth Amendment Effective Date is Arrangers’ agreement to use such efforts does not constitute a single commitment to provide any such requested Revolving Commitment Increase Increase.
(b) Commitments in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 respect of Revolving Commitment Increase shall become Revolving Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be those necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.22. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, a “Revolving Commitment Increase Closing Date”) of each of the conditions set forth in Section 4 4.01 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.01 shall be deemed to refer to the Eleventh effective date of such Incremental Amendment.
(b) ). The Borrower shall provide may use the Administrative Agent with written notice (a “Notice proceeds of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments Loans provided pursuant to this Section 2.10. Each such Notice of any Revolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall specify (i) the proposed be obligated to provide any Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving unless it so agrees in its sole discretion. Any Lender that has agreed in writing fails to respond to a request to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Dateshall be deemed to have declined such request.
(c) On any The Revolving Commitment Increase DateLoans and Revolving Commitments established pursuant to this paragraph shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the Revolving Lenders shall purchase benefits afforded by, this Agreement and assume (the other Loan Documents, and shall, without recourse or warranty) limiting the foregoing, benefit equally and ratably from the Revolving Lenders (i) Revolving Loans, to Guarantees and security interests created by the extent that there are Security Documents. The Loan Parties shall take any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to actions reasonably required by the extent necessary Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding establishment of any such new Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the or any such new Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after After giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, it may be the Borrower shall deliver case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the Administrative Agent a certificate foregoing, on the effective date of the Borrower dated as of applicable Revolving Commitment Increase, the Lenders (including, without limitation, any Additional Lenders) shall make advances among themselves so that after giving effect thereto the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted Loans will be held by the Borrower approving or consenting to such Revolving Commitment Increase and certifying thatLenders (including, before and without limitation, any Additional Lenders), pro rata in accordance with the Pro Rata Percentages hereunder (after giving effect to such the applicable Revolving Commitment Increase, ).
(ie) the representations and warranties contained This Section 2.24 shall supersede any provisions in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Section 2.18 or 9.08 to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Datecontrary.
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Revolving Commitment Increase. (ai) Notwithstanding anything The Revolving Commitment Increase shall be requested by written notice from the Borrower to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders Administrative Agent (a “Revolving Notice of Commitment Increase”) in the form of Exhibit H attached hereto and shall be approved by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and such consent to not be unreasonably withheld. Such Notice of Commitment Increase shall specify (A) the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the proposed effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (iiB) the amount of the requested Revolving Commitment Increase, (iiiC) as applicable, the identity of each New Revolving CI Lender and or Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (ivD) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving CI Lenders from and after the Commitment Increase Effective Date (as defined below). The Administrative Agent shall execute a counterpart of the Notice of Commitment Increase, the Revolving CI Lenders shall execute a Joinder and such Revolving Commitment Increase shall be effective on the proposed effective date set forth in the Notice of Commitment Increase or on another date agreed to by the Administrative Agent and the Borrower (such date referred to as the “Commitment Increase Effective Date”).
(cii) On any Revolving the Commitment Increase Effective Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans outstanding as of such date, (A) each Revolving CI Lender shall, by wire transfer of immediately available funds, deliver to the Administrative Agent such Revolving CI Lender’s New Funds Amount, which amount, for each such Revolving CI Lender, shall constitute Revolving Loans made by such Revolving CI Lender to the Borrower pursuant to this Agreement on such Commitment Increase Effective Date, (B) the Administrative Agent shall, by wire transfer of immediately available funds, pay to each then outstandingReducing Percentage Lender its Reduction Amount, which amount, for each such Reducing Percentage Lender, shall constitute a prepayment by the Borrower pursuant to Section 3.04, ratably in accordance with the respective principal amounts thereof, of the principal amounts of all then outstanding Revolving Loans of such Reducing Percentage Lender, and (iiC) undivided participation interests the Borrower shall be responsible to pay to each Revolving Lender any breakage fees or costs in connection with the reallocation of any outstanding LC Obligations Revolving Loans.
(iii) For purposes of this Section 2.10 and any outstanding Swing Line LoansExhibit H, in each case, the following defined terms shall have the following meanings: (A) “New Funds Amount” means the amount equal to the extent necessary to ensure that product of a Revolving Lender’s increased Revolving Commitment or a Revolving CI Lender’s Revolving Commitment (as applicable) represented as a percentage of the aggregate Revolving Commitments after giving effect to the Revolving Commitment Increase, each Revolving Lender has times the aggregate principal amount of the outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal immediately prior to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated if any, as of the Revolving a Commitment Increase Effective Date signed by (without regard to any increase in the aggregate principal amount of Revolving Loans as a Responsible Officer result of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.borrowings
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Amendment No. 45 Effective Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Non-FILO Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $450,000,000500,000,000; provided that (i) subject to clause (e) below, any Revolving Commitment Increase shall be on the same terms (including the Latest Maturity Date) and pursuant to the documentation applicable to the Non-FILO Facility, (ii) the Lead Borrower shall only be permitted to request five (5) Revolving Commitment Increases during the term of this Agreementafter the Amendment No. 5 Effective Date and (iii) any Revolving Commitment Increase shall be in a minimum amount of $50,000,000 or, if less than $50,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Non-FILO Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the applicable Lenders hereunder and that are reasonably satisfactory each such Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Non-FILO Revolving Commitment increased by its Pro Rata Share (it being understood and agreed that a Lender may elect to have its Non-FILO Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Non-FILO Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Non-FILO Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Non-FILO Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lenders and the Issuing Banks (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of “Eligible Transferee”; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) subject to Section 1.08, no Default or Event of Default would exist after giving effect thereto except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition or other Investments permitted and/or not prohibited under this Agreement, shall waive this requirement as part of customary “sungard” limitations; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (unless 4) the aggregate amount representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition or other Investments permitted and/or not prohibited under this Agreement, may agree to limit this requirement to certain of the representations and warranties; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Non-FILO Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Non-FILO Revolving Commitments of the affected Lenders, (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note and (v) each dollar floor included in a references to “Availability” herein shall be automatically increased so that the ratio of Availability to the Aggregate Commitments as so increased remains the same as prior to such increase.
(d) Except as set forth in clause (e) below, the terms and provisions of the Revolving Commitment Increase shall be identical to the Non-FILO Revolving Loans and the Non-FILO Revolving Commitments (other than arranger, upfront fees and other similar fees) and, for purposes of this Agreement and the other Credit Documents, all Non-FILO Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Non-FILO Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Non-FILO Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Non-FILO Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Non-FILO Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Non-FILO Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Non-FILO Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement2.15.
(e) As Notwithstanding the foregoing, up to $100,000,000 of a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by permitted pursuant to this Section 2.15 may be in the form of a Responsible Officer “first-in, last-out” tranche; provided that (i) the aggregate amount of any such “first-in, last-out” tranche plus the Borrower certifying aggregate amount of FILO Commitments established pursuant to a FILO Exchange Offer described in Section 2.20 shall not exceed $100,000,000 at any time and attaching (ii) including any “first-in, last-out” tranche created pursuant to a FILO Exchange Offer, there shall be no more than one “first-in, last-out” tranche under this Agreement at any time (it being understood that a Revolving Commitment Increase could be in the resolutions adopted by form of additional FILO Commitments then in effect subject to the Borrower approving limitations herein). The Revolving Commitment Increase Notice will stipulate that all or consenting to a portion of such Revolving Commitment Increase will be a “first-in, last-out” tranche, as well as the terms and certifying thatconditions of such “first-in, before last-out” tranche, that shall be customary for such type of tranche in the Lead Borrower’s reasonable determination and after giving effect otherwise will be agreed between the Lead Borrower and the Lenders providing the “first-in, last-out” tranche subject to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as consent of the Revolving Commitment Increase Date, except to the extent Administrative Agent; provided that such representations and warranties specifically refer “first-in, last-out” tranche shall not mature on a date later than the Maturity Date. Any such “first-in, last-out” tranche shall be established pursuant to an earlier date amendment to this Agreement among the Borrowers, the Administrative Agent and each Lender providing the “first-in, last-out” tranche (ii) no Event but which shall not require the consent of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Dateany other Lender).
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed the greater of (x) $200,000,000 and (y) 60.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the Test Period then most recently ended for which Section 9.01 Financials have been delivered; provided that any Revolving Commitment Increase shall be in a minimum amount of $15,000,000 or, if less than $15,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Lenders hereunder and that are reasonably satisfactory to Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent, each Facing Agent and may (at the Swing Line Lender direction of the Borrower) promptly notify the Lenders and/or such other Persons who may participate as Lenders of the requested increase in Revolving Commitments (each, it being understood that the Borrower shall have no obligation to seek a “New Revolving Lender”) or by allowing one or more Commitment Increase from any existing Revolving Lenders to increase their respective Revolving CommitmentsLenders); provided that (i) both before each applicable Lender or additional financial institution may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees; (ii) if commitments from additional financial institutions are obtained in connection with the Revolving Commitment Increase, any Person or Persons providing such commitment shall be subject to the written consent of the Administrative Agent, the Swingline Lender and immediately after giving effect the Issuing Banks (such consent not to be unreasonably withheld, delayed or conditioned), if such consent would be required pursuant to Section 13.04; (iii) [reserved]; (iv) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (v) no Issuing Bank shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) subject to Section 1.05, no Event of Default or Unmatured Event of Default shall have occurred and be continuing or would exist after giving effect thereto; (2) the representations and warranties made by the Credit Parties under each of the Credit Documents shall be true in all material respects, provided that, solely with respect to Revolving Loans made under the Revolving Commitment Increases that are used to effect or finance a Permitted Acquisition or Investments permitted under this Agreement, the Borrower shall have the option of making any representations and warranties under the Credit Documents (other than any Specified Representations) and determinations as to the availability of any “basket-carveouts” under Article 10 effective as of the date of entering the definitive agreement for such Permitted Acquisition or such Investment in accordance with the Limited Condition Transaction provisions set forth in Section 1.05; (3) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Borrower, the Administrative Agent, and the Increase Loan Lenders; (4) the Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; and (5) the Borrower shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrower in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the applicable Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrower, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments (other than (A) any terms and provisions that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of such the Revolving Commitment Increase (immediately prior to the establishment of such dateRevolving Commitment Increase), (B) subject to clause (i) below, the “maturity date and (C) arranger, upfront fees and other similar fees) and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase Date”shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) in no event shall the final maturity date of any Revolving Loans under a Revolving Commitment Increase at the time of establishment thereof be earlier than the Latest Maturity Date that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (ii) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (iii) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (iv) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (v) the Revolving Commitment Increase shall share ratably in an amount less than $10,000,000 (unless the aggregate amount any mandatory prepayments of the Revolving Commitments then in effect is greater than $390,000,000)Loans, (iiivi) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount Pro Rata Percentage of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s of each Lender may be adjusted to give effect to the total Revolving Commitment shall be as increased without by such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and (vii) the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Loans and no Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt have borrowers or guarantors that are not Credit Parties. Each joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Amendment”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Custom Truck One Source, Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to Schedule 1 hereto sets forth the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments portion of the Revolving Lenders (a “Increase of each Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Increase Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and portion of the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Increase of each Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase Lender shall be those conditions set forth in Section 4 of the Eleventh Amendmentseveral and not joint.
(b) The Borrower shall provide On the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify Effective Date, (i) the proposed aggregate principal amount of Revolving Commitment Borrowings outstanding immediately prior to the effectiveness of the Increase Date, which date (the “Existing Revolving Borrowings”) shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increasedeemed to be repaid, (ii) each Revolving Commitment Increase Lender shall make such payments to the amount Administrative Agent as are required by clauses (ii) or (iii), as applicable, of Section 2.21(d) of the requested Revolving Commitment Credit Agreement with respect to its portion of the Increase, (iii) the Administrative Agent shall make such payments to the Revolving Lenders as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and are required by clause (iv) of Section 2.21(d) of the Credit Agreement with respect to the Increase, (iv) after the effectiveness of the Increase, the Borrower shall be deemed to have made new Revolving Borrowings (the “Resulting Revolving Borrowings”) in an aggregate principal amount equal to the aggregate principal amount of the respective Existing Revolving Commitments Borrowings and of the then existing Types and for the Interest Periods specified in the Borrowing Request delivered pursuant to Section 4(d) hereof, (v) each Revolving Lenders Lender shall hold its Applicable Percentage of the Resulting Revolving Borrowings (calculated after giving effect to the effectiveness of the Increase) and (vi) the New Borrower shall pay to each Revolving Lenders from Lender (prior to the effectiveness of the Increase) any and after all accrued but unpaid interest on its Loans comprising the Existing Revolving Commitment Increase DateBorrowings, together with any amounts payable pursuant to Section 2.16 of the Credit Agreement in respect of the repayment contemplated by clause (i) of this paragraph (b), in each case as required by and pursuant to the terms of the Credit Agreement.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase Lender, by delivering its signature page to this Amendment on the Effective Date, shall become effective on its Revolving Commitment Increase Date be deemed to have acknowledged receipt of, and upon such effectiveness: (i) consented to and approved, each Loan Document and each other document required to be delivered to, or be approved by or satisfactory to, the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice or any Class of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Effective Date.
Appears in 1 contract
Samples: Incremental Facility Amendment (Crown Castle International Corp)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower Second Restatement Effective Date, the Company shall have the right to request, by written notice to the Administrative Agent, (x) an increase in the Tranche A Revolving Commitments under the Tranche A Revolving Facility or (y) after all Obligations in respect of the Tranche B Subfacility have been irrevocably paid in full, Revolving Commitments under a first-in last-out facility (an "Incremental FILO Facility") (each, a "Revolving Commitment Increase") (for the avoidance of doubt, the Company may not request any increase in the Delayed Draw Term Loan Commitments under the Delayed Draw Term Loan Facility) in an aggregate amount such that, after giving effect to any such Revolving Commitment Increase, the aggregate principal amount of all then outstanding Revolving Commitments does not exceed $350,000,000; provided that (i)(A) any Revolving Commitment Increase pursuant to clause (x) above (a "Tranche A Revolving Commitment Increase") shall be on the same terms (including the applicable Maturity Date) and pursuant to the documentation applicable to the Tranche A Subfacility, except as set forth under the second sentence of Section 2.15(d) and except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Company and the Increase Loan Lenders and (B) any Revolving Commitment Increase for an Incremental FILO Facility shall have terms as may be agreed among the Company and the Increase Loan Lenders (which terms (other than advance rates, revolving or term nature of the facility, pricing, interest rate margins, discounts, premiums, rate floors, and fees) shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental FILO Facility or the covenant set forth in Section 9.12 is made more restrictive on the Company, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added, or such covenant is made more restrictive, for the benefit of the Lenders, and payments on any such Incremental FILO Facility pursuant to Section 10.11 shall be subordinated to payment of all other Obligations other than Secured Bank Product Obligations that are not Secured Reserved Xxxxxx)), (ii) any Revolving Commitment Increase shall be in a minimum amount of $15,000,000 or, if less than $15,000,000 is available, the amount left available and (iii) the aggregate amount of Commitments at any time outstanding under an Incremental FILO Facility shall not exceed $25,000,000.
(b) Each notice submitted pursuant to timethis Section 2.15 (a "Revolving Commitment Increase Notice") requesting a Revolving Commitment Increase shall specify (i) the amount of the increase in the Revolving Commitments being requested and (ii) if such Revolving Commitment Increase will take the form of an Incremental FILO Facility. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to cause the Company's consent, which consent the Company may exercise in its sole discretion (it is understood that the Company shall not be obligated to notify any existing Revolving Lender of any request for a Revolving Commitment Increase or consent to any existing Revolving Lender's participation in any such Revolving Commitment Increase) have the right to elect to have its Revolving Commitment increased by its Pro Rata Percentage under the Revolving Facility (it being understood and agreed that (x) a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Percentage under the Revolving Facility in its discretion if any other Lender declines to participate in the Revolving Commitment Increase and (y) the Company may elect to offer, or consent to, an increase in the Revolving Commitments of any Lender on a basis that is less than its Pro Rata Percentage under the Revolving Lenders (a “Revolving Commitment Increase”Facility) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to of the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender's receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase or the Company does not consent to or request the participation of a Revolving Lender in any such Revolving Commitment) and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment (such additional financial institutions "Additional Lenders") shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lender and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld, conditioned or delayed) if such consent would be required under Section 12.04 for an assignment of the commitments to such Additional Lender; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an "Increase Loan Lender"), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment "Increase Date”"), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Borrowers shall execute and deliver or cause to be executed and delivered to the Administrative Agent, to the extent required by the Lenders and Additional Lenders providing such Revolving Commitment Increases, customary closing certificates, legal opinions, good standing certificates, resolutions and organizational documents of the type and form delivered on the Original Closing Date; (4) the representations and warranties contained in Section 7 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date (except to the extent such representations and warranties specifically relate to an amount less earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders all fees and expenses required to be paid in connection with any such Revolving Commitment Increase to the Administrative Agent and the Lenders providing such Revolving Commitment Increase shall have been paid to the extent due and owing and, with respect to expenses, to the extent invoices have been received no later than $10,000,000 three Business Days prior to the proposed Increase Date.
(unless c) On the aggregate amount Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01(a) shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as described in Section 2.15, the terms and provisions of the Tranche A Revolving Commitment Increase shall be identical to the Tranche A Revolving Loans and the Tranche A Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Tranche A Revolving Loans made under the Tranche A Revolving Commitment Increase shall be deemed to be Tranche A Revolving Loans. Without limiting the generality of the foregoing, (i) (x) the pricing applicable to the Tranche A Revolving Commitment Increase shall be on terms as agreed with the Increase Loan Lenders but the Applicable Margins and the Unused Line Fee Rate with respect to the Tranche A Subfacility under the then existing Revolving Commitment Increase shall be increased to be consistent with that for such Revolving Commitment Increase and (y) the pricing applicable to an Incremental FILO Facility, shall be on terms as agreed with the Increase Loan Lenders thereunder but shall not include any "most favored nation" pricing provisions, (ii) the Tranche A Revolving Commitment Increase shall share ratably in effect is greater than $390,000,000)any mandatory prepayments of the Tranche A Revolving Loans, (iii) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, be reduced or increased (as applicable) based on each Lender's Pro Rata Percentage under the applicable Revolving Facility and (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld other than as set forth in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase second parenthetical in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and of Section 2.15(a) with respect to any Incremental FILO Facility, the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank equal in Section 4 right of payment and security with and shall benefit from the Eleventh Amendmentsame guarantees as the existing Revolving Loans.
(be) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention Each joinder agreement and any amendment to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an "Incremental Revolving Commitment Increase Date, Agreement") and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Company, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(df) Each The Incremental FILO Facility may have a separate borrowing base against assets of a type included in the Tranche A Borrowing Base, as agreed by the Borrower, the Administrative Agent and the lenders providing the Incremental FILO Facility. To the extent the Incremental FILO Facility is a revolving facility and there are at any time after the effectiveness of such facility, commitments thereunder to be borrowed against, any Revolving Borrowing under this Agreement shall be required to be made first under the Incremental FILO Facility until there is no longer any borrowing availability thereunder (including to the extent that the amount of any borrowing availability is capped by the size of a borrowing base) prior to being permitted be made under the Tranche A Revolving Commitments. There shall be no more than one tranche of Incremental FILO Facility outstanding under this Agreement at any time (it being understood that a Revolving Commitment Increase could be in the form of additional commitments in respect of the FILO tranche then in effect subject to the limitations herein). The Incremental FILO Facility shall become effective provide that as between (x) Revolving Borrowings (for the avoidance of doubt, not including Borrowings under the Incremental FILO Facility) and Delayed Draw Term Loans then outstanding and all Secured Bank Product Obligations on its Revolving Commitment Increase Date account of Secured Reserved Xxxxxx with Secured Hedge Banks and upon such effectiveness: (iy) the Administrative Agent Incremental FILO Facility, all proceeds from the liquidation or other realization of the Collateral shall record in be applied, first to obligations owing under, or with respect to, Revolving Borrowings (for the register each avoidance of doubt, not including Borrowings under the Incremental FILO Facility) and Delayed Draw Term Loans then New Revolving Lender’s information as provided in outstanding and all Secured Bank Product Obligations on account of Secured Reserved Xxxxxx with Secured Hedge Banks and second to the Incremental FILO Facility. To the extent the Incremental FILO Facility utilizes advance rates, no advance rates applicable to such Incremental FILO Facility, when aggregated with the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be advance rates set forth in Annex I to the applicable Notice definition of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a)"Tranche A Borrowing Base" hereunder, and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes greater than 100%. No Borrower may prepay loans under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to Incremental FILO Facility or terminate or reduce the Administrative Agent a certificate commitments in respect of the Borrower dated as of Incremental FILO Facility at any time that other Loans or Commitments and/or reimbursement obligations pursuant to Section 2.13(e) are outstanding, unless (A) the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, Distribution Conditions are satisfied before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date prepayment and (iiB) no Event of Default shall have occurred and be continuing.
(g) The Company may elect for all or Unmatured Event a portion of Default exists or will exist as of the any Revolving Commitment Increase Dateto be made available as a Dutch Subfacility (as defined in the First Restatement Agreement) and, in the event of such election, the Administrative Agent and the Lenders agree to reinstate the Dutch Mechanics in a form substantially consistent with the Dutch Mechanics as they existed immediately prior to the Second Restatement Effective Date and to enter into a Dutch Security Agreement and such other Security Documents reasonably necessary to reinstate the Dutch Mechanics.
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the First Amendment Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that subject to the Limited Condition Acquisition provisions, at the time of any such Revolving Commitment Increase (i) both before and immediately after giving effect to such thereto), no Default or Event of Default (or, in the case of any Revolving Commitment IncreaseIncrease to be used to fund a Limited Condition Acquisition, no Event of Default under Section 10.1(a) or Unmatured Event of Default shall have occurred and be continuing Section 10.1(f) as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Transaction Agreement Date”), (ii) no such shall exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 20,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00020,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000150,000,000 (the “Incremental Availability”), and the Borrower may make a maximum of five (iv5) such requests. Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Revolving Credit Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent or by any other Person constituting an Eligible Assignee (any such other Person being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Revolving Credit Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that may occur on all references to “the date of such Loan or after Issuance” or similar language in such Section 4.2 shall be deemed to refer to the Tenth Amendment Effective Date is a single effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The representations and warranties contained in the Loan Documents (or, in the case of any Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on used to fund a Permitted Acquisition or similar permitted Investment (and subject to including any Limited Condition Acquisition), the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(eSpecified Representations) shall not be applicable accurate in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) before and after the 2014 Revolving Commitment Increase effectiveness of any Incremental Amendment referred to below and the only conditions to the 2014 any Revolving Commitment Increase shall be documented as an increase to the Revolving Facility and shall be on terms identical to those conditions set forth applicable to the Revolving Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases only as permitted pursuant to Section 4 8.9 hereof. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.15, (x) each Revolving Credit Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Credit Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Revolving Credit Lender of the applicable Class and (iii) participations in Protective Advances held by each Revolving Credit Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders of such Class represented by such Xxxxxx’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 12.1 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 12.7 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right The Borrowers may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of the Revolving Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before at the time of any such request and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (unless or such lower amount that either (A) represents all remaining availability under the aggregate amount of limit set forth in the Revolving Commitments then in effect next sentence or (B) is greater than $390,000,000acceptable to the Administrative Agent), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,00050,000,000. Each notice from the Lead Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) has consented (in each case, (ivnot to be unreasonably withheld or delayed) no Revolving to such Lender’s or Additional Lender’s Revolving Commitment shall Increase, if such consent would be increased without required under Section 9.04(b) for an assignment of Revolving Loans to such Revolving Lender or Additional Lender’s prior written consent (which consent may be given or withheld in . The Arranger agrees, upon the request of the Lead Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such Revolving Lender’s sole and absolute discretion) and (v) the only requested Revolving Commitment Increase Increase; provided that may occur on or after the Tenth Amendment Effective Date is Arranger’s agreement to use such efforts does not constitute a single commitment to provide any such requested Revolving Commitment Increase Increase.
(b) Commitments in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 respect of Revolving Commitment Increase shall become Revolving Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be those necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.22. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, a “Revolving Commitment Increase Closing Date”) of each of the conditions set forth in Section 4 4.01 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.01 shall be deemed to refer to the Eleventh effective date of such Incremental Amendment.
(b) ). The Borrower shall provide Borrowers may use the Administrative Agent with written notice (a “Notice proceeds of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments Loans provided pursuant to this Section 2.10. Each such Notice of any Revolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall specify (i) the proposed be obligated to provide any Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving unless it so agrees in its sole discretion. Any Lender that has agreed in writing fails to respond to a request to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Dateshall be deemed to have declined such request.
(c) On any The Revolving Commitment Increase DateLoans and Revolving Commitments established pursuant to this paragraph shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the Revolving Lenders shall purchase benefits afforded by, this Agreement and assume (the other Loan Documents, and shall, without recourse or warranty) limiting the foregoing, benefit equally and ratably from the Revolving Lenders (i) Revolving Loans, to guarantees and security interests created by the extent that there are Security Documents. The Loan Parties shall take any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to actions reasonably required by the extent necessary Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding establishment of any such new Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the or any such new Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after After giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, it may be the Borrower shall deliver case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the Administrative Agent a certificate foregoing, on the effective date of the Borrower dated as of applicable Revolving Commitment Increase, the Lenders (including, without limitation, any Additional Lenders) shall make advances among themselves so that after giving effect thereto the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted Loans will be held by the Borrower approving or consenting to such Revolving Commitment Increase and certifying thatLenders (including, before and without limitation, any Additional Lenders), pro rata in accordance with the Pro Rata Percentages hereunder (after giving effect to such the applicable Revolving Commitment Increase, ).
(ie) the representations and warranties contained This Section 2.24 shall supersede any provisions in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Section 2.18 or 9.08 to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Datecontrary.
Appears in 1 contract
Samples: Revolving Loan Credit Agreement (Forum Merger Corp)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of under the Revolving Lenders applicable Subfacility (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $750,000,000450,000,000; provided that (i) any Revolving Commitment Increase for such Subfacility shall be on the terms (including the Latest Maturity Date of any Class of Commitments under such Subfacility) and pursuant to the documentation applicable to such Subfacility, (ii) the Lead Borrower shall only be permitted to request five (5) Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $50,000,000 or, if less than $50,000,000 is available, the amount left available.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Lead Borrower) promptly notify the applicable Revolving Lenders hereunder and that are reasonably satisfactory each such Revolving Lender may (subject to the Administrative Agent, each Facing Agent Lead Borrower’s consent) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share under the applicable Subfacility (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lenders and the Issuing Banks (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the definition of “Eligible Transferee”; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default would exist after giving effect thereto except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition shall waive this requirement as part of customary “sungard” limitations; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrower, the Administrative Agent, and the Increase Loan Lenders; (3) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in an amount less than $10,000,000 connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent; (unless 4) the aggregate amount representations and warranties contained in Section 8 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date except that the Lenders providing such Revolving Commitment Increase the proceeds of which are to be used primarily to finance a Permitted Acquisition may agree to limit this requirement to certain of the representations and warranties; and (5) the Borrowers shall have paid to the Administrative Agent and the Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitments then in effect is greater than $390,000,000)Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as set forth in clause (e) below, the terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (ii) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (iii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans, (iv) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving be reduced based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Pro Rata Percentage, and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement2.15.
(e) As Notwithstanding the foregoing, up to $75,000,000 of a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by permitted pursuant to this Section 2.15 may be in the form of a Responsible Officer “first-in, last-out” tranche so long as such “first-in, last-out” tranche is established within 18 months of the Borrower certifying and attaching Closing Date; provided that the resolutions adopted by aggregate amount of any such “first-in, last-out” tranche plus the Borrower approving aggregate amount of Indebtedness incurred pursuant to Section 10.04(viii) shall not exceed $115,000,000. Revolving Commitment Increase Notice will stipulate that all or consenting to a portion of such Revolving Commitment Increase will be a “first-in, last-out” tranche, as well as the terms and certifying thatconditions of such “first-in, before last-out” tranche, that shall be customary for such type of tranche in the Lead Borrower’s reasonable determination and after giving effect otherwise will be agreed between the Lead Borrower and the Lenders providing the “first-in, last-out” tranche subject to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as consent of the Revolving Commitment Increase Date, except to the extent Administrative Agent; provided that such representations “first-in, last-out” tranche will have a term of 3 years and warranties specifically refer shall not amortize during the first year. Any such “first-in, last-out” tranche shall be established pursuant to an earlier date amendment to this Agreement among the Borrowers, the Administrative Agent and each Lender providing the “first-in, last-out” tranche (ii) no Event but which shall not require the consent of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Dateany other Lender).
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right The Borrowers may at any time or from time to timetime after April 10, 2018, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of the Revolving Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before at the time of any such request and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (unless or such lower amount that either (A) represents all remaining availability under the aggregate amount of limit set forth in the Revolving Commitments then in effect next sentence or (B) is greater than $390,000,000acceptable to the Administrative Agent), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,00050,000,000. Each notice from the Lead Borrower pursuant to this Section 2.23 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increase. Revolving Commitment Increases may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) has consented (in each case, (ivnot to be unreasonably withheld or delayed) no Revolving to such Lender’s or Additional Lender’s Revolving Commitment shall Increase, if such consent would be increased without required under Section 9.04(b) for an assignment of Revolving Loans to such Revolving Lender or Additional Lender’s prior written consent (which consent may be given or withheld in . The Arranger agrees, upon the request of the Lead Borrower and pursuant to mutually satisfactory engagement and compensation arrangements, to use their commercially reasonable efforts to obtain any Additional Lenders to make any such Revolving Lender’s sole and absolute discretion) and (v) the only requested Revolving Commitment Increase Increase; provided that may occur on or after the Tenth Amendment Effective Date is Arranger’s agreement to use such efforts does not constitute a single commitment to provide any such requested Revolving Commitment Increase Increase.
(b) Commitments in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 respect of Revolving Commitment Increase shall become Revolving Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Lender agreeing to provide such Revolving Commitment Increase, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be those necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.22. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, a “Revolving Commitment Increase Closing Date”) of each of the conditions set forth in Section 4 4.01 (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.01 shall be deemed to refer to the Eleventh effective date of such Incremental Amendment.
(b) ). The Borrower shall provide Borrowers may use the Administrative Agent with written notice (a “Notice proceeds of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments Loans provided pursuant to this Section 2.10. Each such Notice of any Revolving Commitment Increase for any purpose not prohibited by this Agreement. No Lender shall specify (i) the proposed be obligated to provide any Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving unless it so agrees in its sole discretion. Any Lender that has agreed in writing fails to respond to a request to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Dateshall be deemed to have declined such request.
(c) On any The Revolving Commitment Increase DateLoans and Revolving Commitments established pursuant to this paragraph shall constitute Revolving Loans and Revolving Commitments under, and shall be entitled to all the Revolving Lenders shall purchase benefits afforded by, this Agreement and assume (the other Loan Documents, and shall, without recourse or warranty) limiting the foregoing, benefit equally and ratably from the Revolving Lenders (i) Revolving Loans, to guarantees and security interests created by the extent that there are Security Documents. The Loan Parties shall take any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to actions reasonably required by the extent necessary Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding establishment of any such new Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the or any such new Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after After giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, it may be the Borrower shall deliver case that the outstanding Revolving Loans are not held pro rata in accordance with the new Revolving Commitments. In order to remedy the Administrative Agent a certificate foregoing, on the effective date of the Borrower dated as of applicable Revolving Commitment Increase, the Lenders (including, without limitation, any Additional Lenders) shall make advances among themselves so that after giving effect thereto the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted Loans will be held by the Borrower approving or consenting to such Revolving Commitment Increase and certifying thatLenders (including, before and without limitation, any Additional Lenders), pro rata in accordance with the Pro Rata Percentages hereunder (after giving effect to such the applicable Revolving Commitment Increase, ).
(ie) the representations and warranties contained This Section 2.24 shall supersede any provisions in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Section 2.18 or 9.08 to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Datecontrary.
Appears in 1 contract
Samples: Revolving Loan Credit Agreement (ConvergeOne Holdings, Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right The Borrowers may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00010,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,00050,000,000. Each notice from the Borrowers pursuant to this Section shall set forth the requested amount of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15, or by any other bank or other financial institution or institutional lender or investor (ivany such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each L/C Issuer and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld) no Revolving to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable L/C Issuer and the Swing Line Lender, as the case may be, would be required under Section 10.07(b)(i)(B) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase that to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may occur on be necessary or after appropriate, in the Tenth reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and shall be subject to the occurrence of) satisfaction on the Eleventh Amendment Effective Date. The foregoing clause date thereof of each of the conditions set forth in Section 4.02 (iit being understood that all references to “the date of such Loan or L/C Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the following Section 2.10(b) and Section 2.10(e) parties thereto shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 agree. Any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those conditions set forth applicable to the Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrowers and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrowers shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 4 2.15, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations here-under in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, 10.01 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower SecondThird Amendment Effective Date, the Company shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments under any Subfacility (other than the U.S. Tranche B Subfacility) (each, a “Revolving Commitment Increase”) in an aggregate amount such that, after giving effect to any such Revolving Commitment Increase, the aggregate principal amount of all then outstanding Revolving Commitments does not exceed $435,000,0002430,000,000; provided that (i) any Revolving Commitment Increase shall be on the same terms (including the Maturity Date under the applicable Subfacility) and pursuant to the documentation applicable to the applicable Subfacility, except as set forth under the second sentence of Section 2.15(d) and except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Company and the Increase Loan Lenders, (ii) any Revolving Commitment Increase shall be in a minimum amount of $15,000,000 or, if less than $15,000,000 is available, the amount left available; provided that increases in U.S. Tranche B Revolving Commitments under the U.S. Tranche B Subfacility shall be in a minimum amount of $15,000,000,and (iii) the North American Minimum Requirement shall be met at all times, and (iv) increases in U.S. Tranche B Revolving Commitments under the U.S. Tranche B Subfacility shall not exceed $20,000,000 in the aggregate.
(b) Each notice submitted pursuant to this Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify (i) the amount of the increase in the Revolving Commitments being requested and (ii) the Subfacility or Subfacilities under which such Revolving Commitments are being requested to be increased. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to the Company’s consent, which consent the Company may exercise in its sole discretion (it is understood that the Company shall not be obligated to notify any existing Revolving Lender of any request for a Revolving Credit Increase or consent to any existing Revolving Lender’s participation in any such Revolving Commitment Increase) have the right to elect to have its Revolving Commitment increased by its Pro Rata Percentage under the applicable Subfacility or Subfacilities (it being understood and agreed that (x) a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Percentage under the applicable Subfacility or Subfacilities in its discretion if any other Lender declines to participate in the Revolving Commitment Increase and (y) the Company may elect to offer, or consent to, an increase in the Revolving Commitments of any Lender on a basis that is less than its Pro Rata Percentage under the Revolving Lenders (a “applicable Subfacility or Subfacilities of such Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to of the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender’s receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase or the Company does not consent to or request the participation of a Revolving Lender in any such Revolving Commitment) and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment (such additional financial institutions “Additional Lenders”) shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the applicable Swingline Lenders and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld, conditioned or delayed) if such consent would be required under Section 12.04 for an assignment of the commitments to such Additional Lender; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment Increase Date”), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Borrowers shall execute and deliver or cause to be executed and delivered to the Administrative Agent, to the extent required by the Lenders and Additional Lenders providing such Revolving Commitment Increases, customary closing certificates, legal opinions, good standing certificates, resolutions and organizational documents of the type and form delivered on the Closing Date; (4) the representations and warranties contained in Section 7 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date (except to the extent such representations and warranties specifically relate to an amount less earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders all fees and expenses required to be paid in connection with any such Revolving Commitment Increase to the Administrative Agent and the Lenders providing such Revolving Commitment Increase shall have been paid to the extent due and owing and, with respect to expenses, to the extent invoices have been received no later than $10,000,000 three Business Days prior to the proposed Increase Date. ___________________________ 2 Reduced by the current FILO.
(unless c) On the aggregate amount Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as described in Section 2.15, the terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments under the applicable Subfacility and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) the pricing applicable to the Revolving Commitment Increase (x) not in the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders but the Applicable Margins and the Ex-FILO Unused Line Fee Rate under the then existing Revolving Commitment Increase shall be increased to be consistent with that for such Revolving Commitment Increase and (y) in effect is greater than $390,000,000)the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders thereunder but shall not include any “most favored nation” pricing provisions, (ii) the Revolving Commitment Increase shall share ratably in any mandatory prepayments of the Revolving Loans under the applicable Subfacility, (iii) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, be reduced or increased (ivas applicable) no Revolving based on each Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given Pro Rata Percentage under the applicable Subfacility or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, Subfacilities and (iv) the amount Revolving Commitment Increase shall rank equal in right of payment and security with and shall benefit from the respective Revolving Commitments of same guarantees as the then existing Revolving Lenders Loans under the applicable Subfacility. Each joinder agreement and any amendment to any Credit Document requested by the New Revolving Lenders from and after Administrative Agent in connection with the establishment of the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Agreement”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Company, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that subject to the Limited Condition Acquisition provisions, at the time of any such Revolving Commitment Increase (i) both before and immediately after giving effect to such thereto), no Default or Event of Default (or, in the case of any Revolving Commitment IncreaseIncrease to be used to fund a Limited Condition Acquisition, no Event of Default under Section 10.1(a) or Unmatured Event of Default shall have occurred and be continuing Section 10.1(f) as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Transaction Agreement Date”), (ii) no such shall exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 20,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00020,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000100,000,000 (the “Incremental Availability”), and the Borrower may make a maximum of five (iv5) such requests. Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent) or by any other Person constituting an Eligible Assignee (any such other Person being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that may occur on all references to “the date of such Loan or after Issuance” or similar language in such Section 4.2 shall be deemed to refer to the Tenth Amendment Effective Date is a single effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The representations and warranties contained in the Loan Documents (or, in the case of any Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on used to fund a Permitted Acquisition or similar permitted Investment (and subject to including any Limited Condition Acquisition), the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(eSpecified Representations) shall not be applicable accurate in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) before and after the 2014 Revolving Commitment Increase effectiveness of any Incremental Amendment referred to below and the only conditions to the 2014 any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those conditions set forth applicable to the Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in Section 4 of the Eleventh Amendment.
(b) such Revolving Commitment Increase. The Borrower shall provide the Administrative Agent with written notice (a “Notice of use Revolving Commitment Increase”) of its intention Increases only as permitted pursuant to Section 8.9 hereof. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.2.15,
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything Subject to the contrary satisfaction or waiver of the conditions set forth in Section 12.15 hereof, subject on the Seventh Amendment Effective Date, (i) the Incremental Revolving Lender irrevocably (x) in its capacity as an Incremental Revolving Lender, consents to the terms of this Amendment and conditions set forth herein, (y) commits to provide the Borrower shall have the right from time to time, to cause an increase in the entire Incremental Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Incremental Revolving Commitment Increase DateCommitment”), (ii) no such the Incremental Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), become effective and (iii) after giving effect the Revolving Credit Commitments shall be deemed increased by an aggregate principal amount of $50,000,000. Pursuant to such Revolving Commitment IncreaseSection 2.17 of the Amended Credit Agreement, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Incremental Revolving Commitment shall be increased without such a Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole Credit Commitment for all purposes under the Amended Credit Agreement and absolute discretion) each of the other Loan Documents and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject shall have terms identical to the occurrence of) existing Revolving Credit Facility under the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable Amended Credit Agreement immediately prior to the 2014 Revolving Commitment Increase and the only conditions date hereof (but giving effect to any amendments hereunder). This Amendment shall constitute notice to the 2014 Revolving Commitment Increase shall be those conditions set forth in Administrative Agent required under Section 4 2.17(a) of the Eleventh AmendmentCredit Agreement.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Incremental Revolving Lender acknowledges and Revolving Lender agrees that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) upon the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Seventh Amendment Effective Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Incremental Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” under, and a “Revolving Lender” for all purposes under of the Amended Credit Agreement and the other Loan Documents, and shall be subject to and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender thereunder. The Incremental Revolving Lender also acknowledges and agrees that it has (x) received a copy of the Existing Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 6.01 thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this AgreementAmendment and (y) independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Amendment.
(ec) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying The parties hereto agree that, before and after giving effect to such this Amendment and the Incremental Revolving Commitment IncreaseCommitment, (i) the representations and warranties contained in Article VI made by it are true and correct on and as Revolving Credit Commitments of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist Credit Lenders are as of the Revolving Commitment Increase Dateset forth on Schedule I hereto.
Appears in 1 contract
Samples: Credit Agreement (WEX Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, Lead Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $50,000,000; provided that (a) Lead Borrower shall only be permitted to effect five Revolving Commitment Increases during the term of this Agreement and (b) any Revolving Commitment Increase shall be in a minimum amount of $10,000,000 or, if less than $10,000,000 is available, the amount left available (but in any event no less than $5,000,000).
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Lenders hereunder and that are reasonably satisfactory to Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent, Agent may (at the direction of Lead Borrower) promptly notify the Lenders selected by Lead Borrower to provide all or a portion of the Revolving Commitment Increase (it being understood that Lead Borrower shall have no obligation to seek or accept a Revolving Commitment Increase from any existing Lenders) and each Facing Agent and such Lender may (subject to Lead Borrower’s consent) have the Swing Line Lender (each, a “New right to elect to have its Revolving Lender”) or Commitment increased by allowing one or more existing such portion of the requested increase in Revolving Lenders to increase their respective Revolving CommitmentsCommitments as agreed with Lead Borrower; provided that (i) both before each such Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it so agrees, (ii) if commitments from additional financial institutions are required by Lead Borrower in connection with the Revolving Commitment Increase, any Person or Persons selected by Lead Borrower and immediately after giving effect providing such commitment shall be subject to the written consent of the Administrative Agent, the Swingline Lender and any Issuing Bank (such consent not to be unreasonably withheld, delayed or conditioned), if such consent would be required pursuant to the definition of “Eligible Transferee” and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and Lead Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) subject to Section 1.03, no Event of Default or Unmatured Event of Default shall have occurred and be continuing or would exist immediately after giving effect thereto; (2) subject to Section 1.03, the representations and warranties made by the Credit Parties under each of the Credit Documents shall be true in all material respects; and (3) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by Lead Borrower, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to Lead Borrower, the Administrative Agent, and the Increase Loan Lenders.
(c) On the Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date and (iii) Schedule 2.01 shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders.
(d) The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments (other than (A) any terms and provisions that apply solely to any period after the Latest Maturity Date that is in effect on the effective date of such the Revolving Commitment Increase (immediately prior to the establishment of such dateRevolving Commitment Increase), (B) subject to clause (i) in the immediately following sentence, the “maturity date and (C) arranger, upfront fees and other similar fees) and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase Date”shall be deemed to be Revolving Loans. Without limiting the generality of the foregoing, (i) in no event shall the final maturity date of any Revolving Loans under a Revolving Commitment Increase at the time of establishment thereof be earlier than the Latest Maturity Date that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (ii) the Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date that is in effect on the effective date of the Revolving Commitment Increase (immediately prior to the establishment of such Revolving Commitment Increase), (iii) the rate of interest applicable to the Revolving Commitment Increase shall be the same as the rate of interest applicable to the existing Revolving Loans, (iv) unused line fees applicable to the Revolving Commitment Increase shall be calculated using the same Unused Line Fee Rates applicable to the existing Revolving Loans, (v) the Revolving Commitment Increase shall share ratably in an amount less than $10,000,000 (unless the aggregate amount any mandatory prepayments of the Revolving Commitments then in effect is greater than $390,000,000)Loans, (iiivi) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount Pro Rata Percentage of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s of each Lender may be adjusted to give effect to the total Revolving Commitment shall be as increased without by such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) Commitment Increase, and (vvii) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank pari passu in Section 4 right of payment and security with the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of existing Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10Loans. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an “Incremental Revolving Commitment Increase Date, Amendment”) and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed and Lead Borrower, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Revolving Credit Agreement (Interior Logic Group Holdings, LLC)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower Closing Date, the Lead Borrowers shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to this Agreement exceed $75,000,000 from one or more additional Eligible Assignees Lenders or prospective Lenders willing to provide such Revolving Commitment Increase in their own discretion; provided that are any such prospective Lender shall be subject to the consent of the Administrative Agent, the Issuing Bank and the Swingline Lender (which consents shall not already be unreasonably withheld) if such consents would be required in the case of an assignment to such prospective Lender pursuant to Section 12.04(b)(iii)(B) ; provided that (i) the Lead Borrowers shall only be permitted to request 3 Revolving Commitment Increases during the term of this Agreement, (ii) any Revolving Commitment Increase shall be in a minimum amount of $15,000,000 and (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase.
(b) Each notice submitted pursuant to this Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an “Increase Loan Lender”), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders hereunder and the Lead Borrowers, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Increase Date”); provided that are the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Default or Event of Default exists or would exist after giving effect thereto; (2) all representations and warranties in this Agreement shall be true and correct in all material respects (or in all respects to the extent that any representation is qualified by materiality), (3) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Lead Borrowers, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Lead Borrowers, the Administrative Agent, the Issuing Bank, the Swingline Lender and the Increase Loan Lenders; (4) Credit Parties shall execute and deliver or cause to be executed and delivered to the Administrative Agent such amendments to the Credit Documents, legal opinions and other documents as the Administrative Agent may reasonably request in connection with any such transaction, which amendments, legal opinions and other documents shall be reasonably satisfactory to the Administrative Agent, each Facing ; and (5) the Borrowers shall have paid to the Administrative Agent and the Swing Line Lender Lenders such additional fees as may be agreed to be paid by the Borrowers in connection therewith.
(eachc) On the Increase Date, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that upon fulfillment of the conditions set forth in this Section 2.15, (i) both before and immediately after giving the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to such the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, no Event of Default or Unmatured Event of Default (ii) the Administrative Agent shall have occurred notify the Lenders and be continuing as Credit Parties of the effective date occurrence of such the Revolving Commitment Increase to be effected on the Increase Date, (such dateiii) Schedule 1.01(c) shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the “expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase Date”), and requesting a Note.
(iid) no such The terms and provisions of the Revolving Commitment Increase shall be identical to the Revolving Loans and the Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Revolving Loans made under the Revolving Commitment Increase shall be deemed to be Revolving Loans; provided, however that notwithstanding the foregoing, upfront or similar fees, rate of interest and unused line fees applicable to the Revolving Commitment Increase may be different than the upfront or similar fees, rate of interest and/or unused line fees applicable to the existing Revolving Loans and the maturity date applicable for the Revolving Commitment Increase may be later than the maturity date applicable to the existing Revolving Loans. Without limiting the generality of the foregoing, (iv) the Revolving Commitment Increase shall share ratably in an amount less than $10,000,000 (unless the aggregate amount any mandatory prepayments of the Revolving Commitments then in effect is greater than $390,000,000)Loans, (iiiv) after giving effect to such Revolving Commitment IncreaseIncreases, Revolving Commitments in respect of LC Exposure and Swingline Loans shall be reduced based on each Lender’s Pro Rata Percentage, and (vi) the Revolving Commitment Increase shall rank pari passu in right of payment and security with the existing Revolving Loans. Each joinder agreement and any amendment to any Credit Document requested by the Administrative Agent in connection with the establishment of the Revolving Commitment Increase may, without the consent of any of the Lenders, effect such amendments to this Agreement (an “Incremental Revolving Commitment Agreement”) and the other Credit Documents as may be reasonably necessary or appropriate, in the opinion of the Administrative Agent and the Lead Borrowers, to effect the provisions of this Section 2.15.
(e) With respect to any Revolving Commitment Increase consummated by a Borrower pursuant to this Section 2.15, (i) all Borrowings shall be funded pro rata amongst the existing Revolving Commitments and any Revolving Commitment Increases, (ii) (F) each Lender’s Pro Rata Percentage of any unreimbursed LC Disbursement Section 2.13(e)shall be calculated pursuant to Section 2.13(e) after giving effect to any such Revolving Commitment Increase and (G) if the aggregate amount of the all Revolving Commitments shall Commitment Increases having a later maturity date do not exceed $600,000,000the LC Commitment, (iv) no Revolving Lender’s Revolving the LC Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) reduced upon the only Revolving Commitment Increase date that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days prior to the Maturity Date (to the extent needed so that the LC Commitment does not exceed the aggregate Revolving Commitment which would be in effect after receipt by the Administrative Agent Maturity Date) and, if applicable, the Borrowers shall Cash Collateralize obligations under any issued Letters of Credit in an amount equal to 102% of the stated amount of such Notice Letters of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, Credit and (iii) as applicable, the identity (A) each Lender’s Pro Rata Percentage of each New Revolving Lender and Revolving Lender that has agreed in writing any Swingline Loan shall be calculated according to increase its Revolving Commitment hereunder, and (ivSection 2.12(d) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such (B) if the aggregate amount of all Revolving Commitment IncreaseIncreases having a later maturity date do not exceed the Swingline Commitment, the Swingline Commitment shall be reduced upon the date that is five (i5) Business Days prior to the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except Maturity Date (to the extent needed so that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Swingline Commitment does not exceed the aggregate Revolving Commitment Increase which would be in effect after the Maturity Date) and, if applicable, the Borrowers shall prepay any outstanding Swingline Loans.
Appears in 1 contract
Samples: Abl Credit Agreement (Performance Sports Group Ltd.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1Each Additional Revolving Credit Lender hereby agrees, subject to severally and not jointly, on the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth herein and in Section 4 of the Eleventh AmendmentAmended Credit Agreement, to provide an Additional Dollar Revolving Credit Commitment and an Additional Multicurrency Revolving Credit Commitment to the Borrower on the Amendment No. 6 Effective Date, in each case, in an amount equal to the amount set forth opposite such Additional Revolving Credit Lender’s name on Schedule I hereto under the heading “Additional Dollar Revolving Credit Commitment” and “Additional Multicurrency Revolving Credit Commitment”, respectively.
(b) The Borrower Additional Revolving Credit Lenders shall provide constitute “Extended Dollar Revolving Credit Lenders” and/or “Extended Multicurrency Revolving Credit Lenders”, as applicable, “Incremental Revolving Credit Lenders”, “Revolving Credit Lenders” and “Lenders”, the Administrative Agent with written notice (a Additional Dollar Revolving Credit Commitments shall constitute “Notice Extended Dollar Revolving Credit Commitments”, and the loans made thereunder shall constitute “Extended Dollar Revolving Loans”, and the Additional Multicurrency Revolving Credit Commitments shall constitute “Extended Multicurrency Revolving Credit Commitments”, and the loans thereunder shall constitute “Extended Multicurrency Revolving Loans”, in each case for all purposes of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify Amended Credit Agreement and the other Loan Documents.
(i) Upon the proposed effectiveness of the Additional Dollar Revolving Commitment Increase DateCredit Commitments, which date shall each Dollar Revolving Credit Lender immediately prior to such effectiveness will automatically and without further act be no earlier than five (5) Business Days after receipt by the Administrative Agent deemed to have assigned to each Additional Revolving Credit Lender, and each such Additional Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Notice Dollar Revolving Credit Lender’s participations under the Amended Credit Agreement in outstanding Dollar Letters of Revolving Commitment IncreaseCredit such that, (ii) after giving effect to each such deemed assignment and assumption of participations, the amount percentage of the requested aggregate outstanding participations under the Amended Credit Agreement in Dollar Letters of Credit held by each Dollar Revolving Commitment Increase, Credit Lender (iiiincluding each such Additional Revolving Credit Lender) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, will equal such Lender’s Pro Rata Percentage and (ii) undivided participation interests if, immediately prior to the Amendment No. 6 Effective Date, there are any Dollar Revolving Loans outstanding, such Dollar Revolving Loans shall, upon the effectiveness of the Additional Dollar Revolving Credit Commitments, be prepaid from the proceeds of additional Dollar Revolving Loans made under the Amended Credit Agreement (reflecting the increase in any outstanding LC Obligations the Total Dollar Revolving Credit Commitment), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Loans being prepaid and any costs incurred by any Dollar Revolving Credit Lender in accordance with Section 2.15 of the Amended Credit Agreement.
(i) Upon the effectiveness of the Additional Multicurrency Revolving Credit Commitments, each Multicurrency Revolving Credit Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Revolving Credit Lender, and each such Additional Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations under the Amended Credit Agreement in outstanding Swing Line Multicurrency Letters of Credit and, if applicable, Swingline Loans, such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations under the Amended Credit Agreement in Multicurrency Letters of Credit and Swingline Loans held by each Multicurrency Revolving Credit Lender (including each such Additional Revolving Credit Lender) will, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its such Lender’s Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date Percentage and (ii) agrees to take any further steps reasonably requested by the Administrative Agentif, in each case immediately prior to the extent deemed necessary by Amendment No. 6 Effective Date, there are any Multicurrency Revolving Loans outstanding, such Multicurrency Revolving Loans shall, upon the Administrative Agent to effectuate the provisions effectiveness of the preceding sentences. IfAdditional Multicurrency Revolving Credit Commitments, on such Revolving Commitment Increase Date, any be prepaid from the proceeds of additional Multicurrency Revolving Loans have been fundedmade under the Amended Credit Agreement (reflecting the increase in the Total Multicurrency Revolving Credit Commitment), then the Borrower which prepayment shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with accompanied by accrued interest on the reallocation of such outstanding Multicurrency Revolving Loans to effectuate being prepaid and any costs incurred by any Multicurrency Revolving Credit Lender in accordance with Section 2.15 of the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Amended Credit Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Incremental Revolving Credit Assumption Agreement (TransDigm Group INC)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Borrower Second Restatement Effective Date, the Company shall have the right to request, by written notice to the Administrative Agent, an (x) an increase in the Tranche A Revolving Commitments under the Tranche A Revolving Facility or (y) after all Obligations in respect of the Tranche B Subfacility have been irrevocably paid in full, Revolving Commitments under a first-in last-out facility (an "Incremental FILO Facility") (each, a "Revolving Commitment Increase") (for the avoidance of doubt, the Company may not request any increase in the Delayed Draw Term Loan Commitments under the Delayed Draw Term Loan Facility) in an aggregate amount such that, after giving effect to any such Revolving Commitment Increase, the aggregate principal amount of all then outstanding Revolving Commitments does not exceed $350,000,000; provided that (i)(A) any Revolving Commitment Increase pursuant to clause (x) above (a "Tranche A Revolving Commitment Increase") shall be on the same terms (including the Revolvingapplicable Maturity Date) and pursuant to the documentation applicable to Revolvingthe Tranche A FSubfacility , except as set forth under the second sentence of Section 2.15(d) and except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Company and the Increase Loan Lenders and except in the case of(B) any Revolving Commitment Increase for an Incremental FILO Facility, which shall have terms as may be agreed among the Company and the Increase Loan Lenders (which terms (other than advance rates, revolving or term nature of the facility, pricing, interest rate margins, discounts, premiums, rate floors, and fees) shall be reasonably satisfactory to the Administrative Agent (it being understood to the extent that any financial maintenance covenant is added for the benefit of any Incremental FILO Facility or the covenant set forth in Section 9.12 is made more restrictive on the Company, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added, or such covenant is made more restrictive, for the benefit of the Lenders, and payments on any such Incremental FILO Facility pursuant to Section 10.11 shall be subordinated to payment of all other Obligations other than Secured Bank Product Obligations that are not Secured Reserved Xxxxxx)), (ii) any Revolving Commitment Increase shall be in a minimum amount of $15,000,000 or, if less than $15,000,000 is available, the amount left available and (iii) the aggregate amount of Commitments at any time outstanding under an Incremental FILO Facility shall not exceed $25,000,000.
(b) Each notice submitted pursuant to timethis Section 2.15 (a "Revolving Commitment Increase Notice") requesting a Revolving Commitment Increase shall specify (i) the amount of the increase in the Revolving Commitments being requested and (ii) if such Revolving Commitment Increase will take the form of an Incremental FILO Facility. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Company) promptly notify the applicable Revolving Lenders and each such Revolving Lender may (subject to cause the Company's consent, which consent the Company may exercise in its sole discretion (it is understood that the Company shall not be obligated to notify any existing Revolving Lender of any request for a Revolving Commitment Increase or consent to any existing Revolving Lender's participation in any such Revolving Commitment Increase) have the right to elect to have its Revolving Commitment increased by its Pro Rata Percentage under the Revolving Facility (it being understood and agreed that (x) a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Percentage under the Revolving Facility in its discretion if any other Lender declines to participate in the Revolving Commitment Increase and (y) the Company may elect to offer, or consent to, an increase in the Revolving Commitments of any Lender on a basis that is less than its Pro Rata Percentage under the Revolving Lenders (a “Revolving Commitment Increase”Facility) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to of the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to requested increase their respective in Revolving Commitments; provided that (i) both before and immediately each Lender may elect or decline, in its sole discretion, to have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Lender shall be obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase Notice within five (5) Business Days after giving effect such Lender's receipt of such request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase; (ii) if any Lender declines to participate in any Revolving Commitment Increase or the Company does not consent to or request the participation of a Revolving Lender in any such Revolving Commitment) and, no Event of Default as a result, commitments from additional financial institutions are required in connection with the Revolving Commitment Increase, any Person or Unmatured Event of Default Persons providing such commitment (such additional financial institutions "Additional Lenders") shall have occurred and be continuing as subject to the written consent of the effective date Administrative Agent, the Swingline Lender and the applicable Issuing Banks (in each case, such consent not to be unreasonably withheld, conditioned or delayed) if such consent would be required under Section 12.04 for an assignment of the commitments to such Additional Lender; (iii) in no event shall a Defaulting Lender be entitled to participate in such Revolving Commitment Increase; and (iv) no Issuing Bank or Swingline Lender shall be required to act in such capacity under the Revolving Commitment Increase without its prior written consent. In the event that any Lender or other Person agrees to participate in any Revolving Commitment Increase (each an "Increase Loan Lender"), such Revolving Commitment Increase shall become effective on such date as shall be mutually agreed upon by the Increase Loan Lenders and the Company, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Notice (such date, the “Revolving Commitment "Increase Date”"), (ii) no ; provided that the establishment of such Revolving Commitment Increase shall be subject to the satisfaction of each of the following conditions: (1) no Event of Default would exist after giving effect thereto; (2) the Revolving Commitment Increase shall be effected pursuant to one or more joinder agreements executed and delivered by the Company, the Administrative Agent, and the Increase Loan Lenders, each of which shall be reasonably satisfactory to the Company, the Administrative Agent, and the Increase Loan Lenders; (3) the Borrowers shall execute and deliver or cause to be executed and delivered to the Administrative Agent, to the extent required by the Lenders and Additional Lenders providing such Revolving Commitment Increases, customary closing certificates, legal opinions, good standing certificates, resolutions and organizational documents of the type and form delivered on the Original Closing Date; (4) the representations and warranties contained in Section 7 shall be true and correct in all material respects (or in all respects to the extent that any representation or warranty is qualified by materiality) as of the Increase Date (except to the extent such representations and warranties specifically relate to an amount less earlier date, in which case such representations and warranties shall have been true and correct in all material respects on and as of such earlier date); and (5) the Borrowers shall have paid to the Administrative Agent and the Increase Loan Lenders all fees and expenses required to be paid in connection with any such Revolving Commitment Increase to the Administrative Agent and the Lenders providing such Revolving Commitment Increase shall have been paid to the extent due and owing and, with respect to expenses, to the extent invoices have been received no later than $10,000,000 three Business Days prior to the proposed Increase Date.
(unless c) On the aggregate amount Increase Date, upon fulfillment of the conditions set forth in this Section 2.15, (i) the Administrative Agent shall effect a settlement of all outstanding Revolving Loans among the Lenders that will reflect the adjustments to the Revolving Commitments of the Lenders as a result of the Revolving Commitment Increase, (ii) the Administrative Agent shall notify the Lenders and Credit Parties of the occurrence of the Revolving Commitment Increase to be effected on the Increase Date, (iii) Schedule 2.01(a) shall be deemed modified to reflect the revised Revolving Commitments of the affected Lenders and (iv) Notes will be issued, at the expense of the Borrowers, to any Lender participating in the Revolving Commitment Increase and requesting a Note.
(d) Except as described in Section 2.15, the terms and provisions of the Tranche A Revolving Commitment Increase (other than an Incremental FILO Facility) shall be identical to the Tranche A Revolving Loans and the Tranche A Revolving Commitments and, for purposes of this Agreement and the other Credit Documents, all Tranche A Revolving Loans made under the Tranche A Revolving Commitment Increase shall be deemed to be Tranche A Revolving Loans. Without limiting the generality of the foregoing, (i) (x) the pricing applicable to the Tranche A Revolving Commitment Increase (x) not in the form of a first-in last-out facility shall be on terms as agreed with the Increase Loan Lenders but the Applicable Margins and the Unused Line Fee Rate with respect to the Tranche A Subfacility under the then existing Revolving Commitment Increase shall be increased to be consistent with that for such Revolving Commitment Increase and (y) in effect is greater the form of a first-in last-outpricing applicable to an Incremental FILO fFacility, shall be on terms as agreed with the Increase Loan Lenders thereunder but shall not include any "most favored nation" pricing provisions, (ii) the Tranche A Revolving Commitment Increase (other than $390,000,000)an Incremental FILO Facility) shall share ratably in any mandatory prepayments of the Tranche Revolving Loans, (iii) after giving effect to such Revolving Commitment IncreaseIncreases, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, be reduced or increased (as applicable) based on each Lender's Pro Rata Percentage under the applicable Revolving Facility and (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld other than as set forth in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase second parenthetical in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and of Section 2.15(a) with respect to any Incremental FILO Facility, the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth rank equal in Section 4 right of payment and security with and shall benefit from the Eleventh Amendmentsame guarantees as the existing Revolving Loans.
(be) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention Each joinder agreement and any amendment to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt any Credit Document requested by the Administrative Agent in connection with the establishment of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
may, without the consent of any of the Lenders, effect such amendments to this Agreement (c) On any an "Incremental Revolving Commitment Increase Date, Agreement") and the Revolving Lenders shall purchase and assume (without recourse other Credit Documents as may be reasonably necessary or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loansappropriate, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share opinion of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on and the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed Company, to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate effect the provisions of this Section 2.10(c)2.15.
(df) Each The Incremental FILO Facility may have a separate borrowing base against assets of a type included in the Tranche A Borrowing Base, as agreed by the Borrower, the Administrative Agent and the lenders providing the Incremental FILO Facility. To the extent the Incremental FILO Facility is a revolving facility and there are at any time after the effectiveness of such facility, commitments thereunder to be borrowed against, any Revolving Borrowing under this Agreement shall be required to be made first under the Incremental FILO Facility until there is no longer any borrowing availability thereunder (including to the extent that the amount of any borrowing availability is capped by the size of a borrowing base) prior to being permitted be made under the Tranche A Revolving Commitments. There shall be no more than one FILO tranche of Incremental FILO Facility outstanding under this Agreement at any time (it being understood that a Revolving Commitment Increase could be in the form of additional commitments in respect of the FILO tranche then in effect subject to the limitations herein). The Incremental FILO Facility shall become effective provide that as between (x) Revolving Borrowings (for the avoidance of doubt, not including Borrowings under the Incremental FILO Facility) and Delayed Draw Term Loans then outstanding and all Secured Bank Product Obligations on its Revolving Commitment Increase Date account of Secured Reserved Xxxxxx with Secured Hedge Banks and upon such effectiveness: (iy) the Administrative Agent Incremental FILO Facility, all proceeds from the liquidation or other realization of the Collateral shall record in be applied, first to obligations owing under, or with respect to, Revolving Borrowings (for the register each avoidance of doubt, not including Borrowings under the Incremental FILO Facility) and Delayed Draw Term Loans then New Revolving Lender’s information as provided in outstanding and all Secured Bank Product Obligations on account of Secured Reserved Xxxxxx with Secured Hedge Banks and second to the Incremental FILO Facility. To the extent the Incremental FILO Facility utilizes advance rates, no advance rates applicable to such Incremental FILO Facility, when aggregated with the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be advance rates set forth in Annex I to the applicable Notice definition of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a)"Tranche A Borrowing Base" hereunder, and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes greater than 100%. No Borrower may prepay loans under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to Incremental FILO Facility or terminate or reduce the Administrative Agent a certificate commitments in respect of the Borrower dated as of Incremental FILO Facility at any time that other Loans or Commitments and/or reimbursement obligations pursuant to Section 2.13(e) are outstanding, unless (A) the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, Distribution Conditions are satisfied before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date prepayment and (iiB) no Event of Default shall have occurred and be continuing.
(g) The Company may elect for all or Unmatured Event a portion of Default exists or will exist as of the any Revolving Commitment Increase Dateto be made available as a Dutch Subfacility (as defined in the First Restatement Agreement) and, in the event of such election, the Administrative Agent and the Lenders agree to reinstate the Dutch Mechanics in a form substantially consistent with the Dutch Mechanics as they existed immediately prior to the Second Restatement Effective Date and to enter into a Dutch Security Agreement and such other Security Documents reasonably necessary to reinstate the Dutch Mechanics.
Appears in 1 contract
Samples: Credit Agreement (SunOpta Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1Each Additional Revolving Credit Lender hereby agrees, subject to severally and not jointly, on the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth herein and in Section 4 of the Eleventh AmendmentAmended Credit Agreement, to provide an Additional Dollar Revolving Credit Commitment to the Borrower on the Amendment No. 9 Effective Date in an amount equal to the amount set forth opposite such Additional Revolving Credit Lender’s name on Schedule I hereto under the heading “Additional Dollar Revolving Credit Commitment”.
(b) The Borrower Additional Revolving Credit Lenders shall provide constitute “Extended Dollar Revolving Credit Lenders”, “Incremental Revolving Credit Lenders”, “Revolving Credit Lenders” and “Lenders”, the Administrative Agent with written notice (a Additional Dollar Revolving Credit Commitments shall constitute “Notice Extended Dollar Revolving Credit Commitments”, and the loans made thereunder shall constitute “Extended Dollar Revolving Loans”, in each case for all purposes of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify Amended Credit Agreement and the other Loan Documents.
(i) Upon the proposed effectiveness of the Additional Dollar Revolving Commitment Increase DateCredit Commitments, which date shall each Dollar Revolving Credit Lender immediately prior to such effectiveness will automatically and without further act be no earlier than five (5) Business Days after receipt by the Administrative Agent deemed to have assigned to each Additional Revolving Credit Lender, and each such Additional Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Notice Dollar Revolving Credit Lender’s participations under the Amended Credit Agreement in outstanding Dollar Letters of Revolving Commitment IncreaseCredit such that, (ii) after giving effect to each such deemed assignment and assumption of participations, the amount percentage of the requested aggregate outstanding participations under the Amended Credit Agreement in Dollar Letters of Credit held by each Dollar Revolving Commitment Increase, Credit Lender (iiiincluding each such Additional Revolving Credit Lender) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, will equal such Lender’s Pro Rata Percentage and (ii) undivided participation interests if, immediately prior to the Amendment No. 9 Effective Date, there are any Dollar Revolving Loans outstanding, such Dollar Revolving Loans shall, upon the effectiveness of the Additional Dollar Revolving Credit Commitments, be prepaid from the proceeds of additional Dollar Revolving Loans made under the Amended Credit Agreement (reflecting the increase in any outstanding LC Obligations the Total Dollar Revolving Credit Commitment), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Loans being prepaid and any outstanding Swing Line Loans, costs incurred by any Dollar Revolving Credit Lender in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share accordance with Section 2.15 of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Amended Credit Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Incremental Revolving Credit Assumption Agreement (TransDigm Group INC)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject A. Subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, time to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000290,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, 300,000,000 and (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment).
(b) B. The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) C. On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date or Extension Effective Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) D. Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) E. As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (Huntsman CORP)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, no Default or Event of Default shall exist, (iii) any Revolving Loans made under such Revolving Commitment Increase will rank pari passu in right of payment with existing Revolving Loans and the Liens securing any Revolving Loans made under such Revolving Commitment Increase will rank pari passu with the Liens securing the existing Revolving Loans, (iii) the representations final maturity date of such Revolving Commitment Increase shall be no earlier than the then Latest Maturity Date of any other Revolving Credit Commitments hereunder, (iv) the Borrower shall be in compliance with Article VI, whether or not in effect, as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase and warranties contained any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in Article VI each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15) and (v) the Senior Secured Leverage Ratio shall be no greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase and any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15, but excluding the proceeds from any borrowing under such Revolving Commitment Increase from any “net debt” determination). Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $12,500,000 (provided that such amount may be less than $12,500,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed $50,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it are true being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and correct otherwise on terms reasonably acceptable to the Administrative Agent, or by any other bank or other financial institution or institutional lender or investor (any such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders providing the applicable Revolving Commitment Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and the satisfaction of such other conditions (if any) as the parties thereto shall agree and, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, Board of Director resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date, together with such supplements and/or amendments to the Collateral Documents as the Administrative Agent shall reasonably request (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies). Any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those applicable to the Facility, except with respect to any original issue discount or any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase; provided that if any of the Applicable Margins or the Applicable Unused Commitment Fee Rate with respect to any Revolving Commitment Increase exceed any of Applicable Margins or Applicable Unused Commitment Fee Rate, as the case may be, with respect to the existing Revolving Credit Commitment Facility, the Applicable Margins and/or Applicable Unused Commitment Fee Rate, as applicable, shall be increased to equal the Applicable Margins and the Applicable Unused Commitment Fee Rate with respect to such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.15, (x) each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase Dateof the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, except and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the extent that such representations and warranties specifically refer to an earlier date and percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) no Event of Default or Unmatured Event of Default exists or will exist as participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase DateLender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.15 shall supersede any provisions in Section 12.1 or Section 12.7 to the contrary.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything On the terms and subject to the contrary conditions set forth herein, but immediately after giving effect to the transactions described in Section 12.13(c) hereof, the Revolving Commitment Increase shall become effective. Schedule III hereto sets forth the portion of the Revolving Commitment Increase of each Incremental Revolving Lender as of the Third Amendment Closing Date (with respect to each Incremental Revolving Lender, such Incremental Revolving Lender’s “Incremental Revolving Credit Commitment”), and immediately after giving effect to this Section 4(a), the amount of Revolving Credit Commitments of each Incremental Revolving Lender shall include such Incremental Revolving Lender’s Incremental Revolving Commitment.
(b) As of the Third Amendment Closing Date, (i) the Incremental Revolving Credit Commitments shall constitute “Commitments”, “Initial Revolving Credit Commitments”, “Revolving Credit Commitments”, (ii) any Revolving Loans made under the Incremental Revolving Credit Commitments shall constitute “Loans”, “Initial Revolving Loans” and “Revolving Loans” and (iii) each Incremental Revolving Lender shall constitute a “Lender”, an “Initial Revolving Lender” and a “Revolving Lender”, in each case under, and for all purposes of, the Credit Agreement and the other Loan Documents.
(c) As of the Third Amendment Closing Date and after giving effect to transactions described in Section 3(c) above and this Section 4, each Replacement Revolving Lender and Incremental Revolving Lender are willing to provide to the Borrowers a portion of a single Class of Revolving Commitments in the amount set forth opposite such Person’s name on Schedule IV hereto (which Schedule IV includes, for the avoidance of doubt, the Replacement Revolving Credit Commitments of the Replacement Revolving Lender and Revolving Commitment Increase of the Incremental Revolving Lenders expressed as a single Class of Revolving Commitments available to the Borrowers following the Third Amendment Closing Date) and to make Revolving Loans to the Borrowers in respect thereof from time to time subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase herein and in the Revolving Commitments Credit Agreement. As of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Third Amendment Effective Date. The foregoing clause (i, the portion of the Schedule 1.01(a) and of the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Credit Agreement titled “Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase Credit Commitments” shall be those conditions set forth deemed amended and restated and replaced in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt full by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)Schedule IV hereto.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) The commitments of the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Incremental Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreementare several.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (Certara, Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, FILO Commitments (each Facing Agent and the Swing Line Lender (eachsuch increase, a “New FILO Commitment Increase” and, together with any Revolving LenderCommitment Increase, each a “Commitment Increase”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, no Default or Event of Default shall exist, (iii) any Loans made under such Revolving Commitment Increase (other than those made under a Last-Out Incremental (as defined below)) will rank pari passu in right of payment with existing Revolving Loans and the Liens securing any Loans made under such Revolving Commitment Increase will rank pari passu with the Liens securing the existing Revolving Loans(a) any Loans made under a Revolving Commitment Increase will rank pari passu in right of payment with existing Revolving Loans and the Liens securing any Loans made under such Commitment Increase will rank pari passu with the Liens securing the existing Revolving Loans, and (b) any Loans made under a FILO Commitment Increase will rank pari passu in right of payment with existing FILO Loan and the Liens securing any Loans made under such FILO Commitment Increase will rank pari passu with the Liens securing the existing FILO Loan, (iii) the representations final maturity date of such Revolving Commitment Increase shall be no earlier than the then Latest Maturity Date of any other Revolving Credit Commitments hereunder, and warranties contained the final maturity date of such FILO Commitment Increase shall be no earlier than the then Latest Maturity Date of any other FILO Commitments hereunder, (iv) the Borrower shall be in compliance with Article VI made by it are true and correct on and VI, whether or not in effect, as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase Dateand any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, except in each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the extent that maximum amount of Loans available under such representations Revolving Commitment Increase and warranties specifically refer any Revolving Commitment Increase previously made pursuant to an earlier date this Section 2.15) and (iiv) the Senior Secured Leverage Ratio shall be no Event of Default or Unmatured Event of Default exists or will exist greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase Date.and any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15, but excluding the proceeds from any borrowing under such Revolving Commitment Increase from any “net debt” determination); provided that the foregoing clauses (iv) and (v) shall not apply to any Revolving Commitment Increase pursuant to Amendment No. 3.3
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Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, each party hereto acknowledges and agrees that (a) the Borrower Revolving Credit Commitments shall have be increased by $30,000,000 on the right from time to time, to cause an Incremental Amendment Effective Date (as defined below) (such increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such datecommitments, the “Revolving Credit Commitment Increase DateIncrease”), (iib) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 from and after the Incremental Amendment Effective Date (unless i) the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Credit Commitments shall not exceed be $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase130,000,000, (ii) the amount Incremental Revolving Lender shall have a Revolving Credit Commitment of the requested Revolving Commitment Increase, $30,000,000 and (iii) as applicablethe Incremental Revolving Lender shall for all purposes be deemed a Revolving Credit Lender, (c) for the avoidance of doubt, the identity Incremental Revolving Lender’s Revolving Credit Commitments shall be of each New the same Class and subject to identical terms (including, without limitation, with respect to the Applicable Rate, Maturity Date and commitment fees) as the Revolving Lender Credit Commitments existing immediately prior to giving effect to this Amendment and (d) the Borrower has elected to use clause (a) of the definition of “Available Incremental Amount” to effectuate the increase in Revolving Lender Credit Commitments contemplated hereby. Furthermore, the Incremental Revolving Lender, by delivering its signature page to this Amendment on the Incremental Amendment Effective Date, (i) confirms that it has agreed received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in writing taking or not taking action under the Credit Agreement; (iii) appoints and authorizes the Administrative Agent to increase take such action as agent on its Revolving Commitment hereunderbehalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) the amount agrees that it will perform in accordance with their terms all of the respective Revolving Commitments obligations which by the terms of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there Credit Agreement are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made performed by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the as a Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)Credit Lender.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
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Samples: Incremental Amendment (M/a-Com Technology Solutions Holdings, Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, no Default or Event of Default shall exist, (iii) any Revolving Loans made under such Revolving Commitment Increase (other than those made under a Last-Out Incremental (as defined below)) will rank pari passu in right of payment with existing Revolving Loans and the Liens securing any Revolving Loans made under such Revolving Commitment Increase will rank pari passu with the Liens securing the existing Revolving Loans, (iii) the representations final maturity date of such Revolving Commitment Increase shall be no earlier than the then Latest Maturity Date of any other Revolving Credit Commitments hereunder, (iv) the Borrower shall be in compliance with Article VI, whether or not in effect, as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase and warranties contained any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in Article VI each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15) and (v) the Senior Secured Leverage Ratio shall be no greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase and any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15, but excluding the proceeds from any borrowing under such Revolving Commitment Increase from any “net debt” determination); provided that the foregoing clauses (iv) and (v) shall not apply to any Revolving Commitment Increase pursuant to Amendment No. 3. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases after the Amendment No. 4 Effective Date shall not exceed $50,000,000.25,000,000. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other bank or other financial institution or institutional lender or investor (any such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases (other than the consent of each Issuer and Swing Loan Lender with respect to any Last-Out Incremental provided in the form of a term loan) if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders providing the applicable Revolving Commitment Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and the satisfaction of such other conditions (if any) as the parties thereto shall agree and, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, Board of Director resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date (other than changes to such legal opinion resulting from a Change in Law, change in fact or change to counsel’s form of opinion) or otherwise reasonably satisfactory to the Administrative Agent, together with such supplements and/or amendments to the Collateral Documents as the Administrative Agent shall reasonably request (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies). AnyEach Revolving Commitment Increase (other than a Last-Out Incremental incurred as a term loan) shall be documented as an increase to the Facility and. Each Revolving Commitment Increase shall be on terms identical to those applicable to the Facility, except (x) with respect to any original issue discount or any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase; provided that if any of the Applicable Margins or the Applicable Unused Commitment Fee Rate with respect to any Revolving Commitment Increase (other than a Last-Out Incremental) exceed any of Applicable Margins or Applicable Unused Commitment Fee Rate, as the case may be, with respect to the existing Revolving Credit Commitment Facility, the Applicable Margins and/or Applicable Unused Commitment Fee Rate, as applicable, shall be increased to equal the Applicable Margins and the Applicable Unused Commitment Fee Rate with respect to such Revolving Commitment Increase (the “MFN Provision”), (y) any such Revolving Commitment Increase may rank junior to the Obligations in right of payment in any distribution waterfall (a “Last-Out Incremental”) and such Last-Out Incremental may (1) have interest rate margins, interest rate floors, original issue discount, upfront fees, structuring, commitment and arranger fees (and any fee similar to any of the foregoing) that are true determined by the Company and correct on the lender or lenders providing the relevant Last-Out Incremental and as shall not be subject to the MFN Provision, (2) be in the form of one or more revolving credit facilities or term loans and (3) have other terms that are customary for “last-out” asset-based credit facilities and reasonably satisfactory to the Administrative Agent; it being understood and agreed that (x) the Administrative Agent may implement a dollar-for-dollar Reserve against the Borrowing Base in respect of the amount of any Last-Out Incremental and (y) in no event shall any Last-Out Incremental be entitled to receive payments under Section 10.3 prior to the payment in full of all amounts owing with respect to any Cash Management Obligations or Secured Hedge Obligations and (z) for terms applicable only after the then Latest Maturity Date. The Borrower shall use the proceeds of any Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit CommitmentsCommitment Increase pursuant to this Section 2.15, other than any Revolving Commitment Increase in the form of a Last-Out Incremental, (x) each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase Dateof the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, except and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the extent that such representations and warranties specifically refer to an earlier date and percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) no Event of Default or Unmatured Event of Default exists or will exist as participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase DateLender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.15 shall supersede any provisions in Section 12.1 or Section 12.7 to the contrary.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, after the Closing Date, the Borrower shall have the right from time to timerequest, by written notice to cause the Administrative Agent, an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding in an aggregate amount not to exceed $10,000,000; provided that (i) the Borrower shall only be permitted to request two (2) Revolving Commitment Increases during the term of this Agreement and (ii) any Revolving Commitment Increase shall be in a minimum amount of $5,000,000.
(b) Each notice submitted pursuant to this Agreement one or more additional Eligible Assignees that are not already Section 2.15 (a “Revolving Commitment Increase Notice”) requesting a Revolving Commitment Increase shall specify the amount of the increase in the Revolving Commitments being requested. Upon receipt of a Revolving Commitment Increase Notice, the Administrative Agent may (at the direction of the Borrower) promptly notify the Lenders hereunder and that are reasonably satisfactory each Lender may (subject to the Administrative AgentBorrower’s consent, each Facing Agent not to be unreasonably withheld) have the right to elect to have its Revolving Commitment increased by its Pro Rata Share (it being understood and agreed that a Lender may elect to have its Revolving Commitment increased in excess of its Pro Rata Share in its discretion if any other Lender declines to participate in the Swing Line Lender (each, a “New Revolving Lender”Commitment Increase) or by allowing one or more existing Revolving Lenders to of the requested increase their respective in Revolving Commitments; provided that (i) both before and immediately after giving effect each Lender may elect or decline, in its sole discretion, to such have its Revolving Commitment increased in connection with any requested Revolving Commitment Increase, it being understood that no Event of Default or Unmatured Event of Default Lender shall have occurred and be continuing as of the effective date of such obligated to increase its Revolving Commitment unless it, in its sole discretion, so agrees and, if a Lender fails to respond to any Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than within five (5) Business Days after such Lender’s receipt by the Administrative Agent of such Notice of request, such Lender shall be deemed to have declined to participate in such Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving if any Lender and Revolving Lender that has agreed declines to participate in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Dateand, the Revolving Lenders shall purchase and assume (without recourse or warranty) as a result, commitments from the Revolving Lenders (i) Revolving Loans, to the extent that there additional financial institutions are any Revolving Loans then outstanding, and (ii) undivided participation interests required in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to connection with the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender any Person or Persons providing such commitment shall make any payment required to be made by it pursuant subject to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by written consent of the Administrative Agent, in each case the Swingline Lender and the Issuing Bank (such consent not to be unreasonably withheld or delayed), if such consent would be required pursuant to the extent deemed necessary by the Administrative Agent definition of Eligible Assignee and (iii) in no event shall a Defaulting Lender be entitled to effectuate the provisions of the preceding sentences. If, on participate in such Revolving Commitment Increase Date, Increase. In the event that any Lender or other Person agrees to participate in any Revolving Loans have been fundedCommitment Increase (each an “Increase Loan Lender”), then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its such date as shall be mutually agreed upon by the Increase Loan Lenders and the Borrower, which date shall be as soon as practicable after the date of receipt of the Revolving Commitment Increase Date and upon Notice (such effectiveness: (i) date, the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment “Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) ”); provided that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice establishment of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver subject to the Administrative Agent a certificate satisfaction of each of the Borrower dated as of following conditions: (1) the conditions set forth in Section 4.02(a) and (b) shall be satisfied; (2) the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying shall be effected pursuant to one or more joinder agreements executed and attaching the resolutions adopted delivered by the Borrower approving or consenting to such Revolving Commitment Borrower, the Administrative Agent, and the Increase and certifying thatLoan Lenders, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as each of the Revolving Commitment Increase Date, except which shall be reasonably satisfactory to the extent that such representations Borrower, the Administrative Agent, and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.Loan Lenders;
Appears in 1 contract
Samples: Abl Credit Agreement
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right The Borrowers may at any time or from time to timetime after the Closing Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00010,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,0005035,000,000. Each notice from the Borrowers pursuant to this Section shall set forth the requested amount of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15, or by any other bank or other financial institution or institutional lender or investor (ivany such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each L/C Issuer and the Swing Line Lender shall have consented (in each case, such consent not to be unreasonably withheld) no Revolving to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable L/C Issuer and the Swing Line Lender, as the case may be, would be required under Section 10.07(b)(i)(B) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase that to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may occur on be necessary or after appropriate, in the Tenth reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and shall be subject to the occurrence of) satisfaction on the Eleventh Amendment Effective Date. The foregoing clause date thereof of each of the conditions set forth in Section 4.02 (iit being understood that all references to “the date of such Loan or L/C Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the following Section 2.10(b) and Section 2.10(e) parties thereto shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 agree. Any Revolving Commitment Increase shall be documented as an increase to the Facility and shall be on terms identical to those conditions set forth applicable to the Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrowers and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrowers shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 4 2.15, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, 10.01 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect upon the effectiveness of any Incremental Amendment referred to such Revolving Commitment Increasebelow, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00025,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,00075,000,000 (the “Incremental Availability”). Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), or by any other bank or other financial institution or institutional lender or investor (ivany such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld) no Revolving to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase that to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may occur on be necessary or after appropriate, in the Tenth reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and shall be subject to the occurrence of) satisfaction on the Eleventh Amendment date thereof (each, an “Incremental Facility Effective Date. The foregoing clause ”) of each of the conditions set forth in Section 4.2 (iit being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and such other conditions as the following Section 2.10(b) and Section 2.10(e) parties thereto shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 agree. Any Revolving Commitment Increase shall be documented as an increase to the applicable Class of Loans and shall be on terms identical to those conditions set forth applicable to such Class, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to this Section 4 2.15, (x) each Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 12.1 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 12.7 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1Each Additional Revolving Credit Lender hereby agrees, subject to severally and not jointly, on the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth herein and in Section 4 of the Eleventh AmendmentAmended Credit Agreement, to provide an Additional Dollar Revolving Credit Commitment and an Additional Multicurrency Revolving Credit Commitment to the Borrower on the Amendment No. 5 Effective Date, in each case, in an amount equal to the amount set forth opposite such Additional Revolving Credit Lender’s name on Schedule I hereto under the heading “Additional Dollar Revolving Credit Commitment” and “Additional Multicurrency Revolving Credit Commitment”, respectively.
(b) The Borrower Additional Revolving Credit Lenders shall provide constitute “Extended Dollar Revolving Credit Lenders” and “Extended Multicurrency Revolving Credit Lenders”, the Administrative Agent with written notice (a Additional Dollar Revolving Credit Commitments shall constitute “Notice Extended Dollar Revolving Credit Commitments”, and the loans made thereunder shall constitute “Extended Dollar Revolving Loans”, and the Additional Multicurrency Revolving Credit Commitments shall constitute “Extended Multicurrency Revolving Credit Commitments”, and the loans made thereunder shall constitute “Extended Multicurrency Revolving Loans”, in each case for all purposes of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify Amended Credit Agreement and the other Loan Documents.
(i) Upon the proposed effectiveness of the Additional Dollar Revolving Commitment Increase DateCredit Commitments, which date shall each Dollar Revolving Credit Lender immediately prior to such effectiveness will automatically and without further act be no earlier than five (5) Business Days after receipt by the Administrative Agent deemed to have assigned to each Additional Revolving Credit Lender, and each such Additional Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Notice Dollar Revolving Credit Lender’s participations under the Amended Credit Agreement in outstanding Dollar Letters of Revolving Commitment IncreaseCredit such that, (ii) after giving effect to each such deemed assignment and assumption of participations, the amount percentage of the requested aggregate outstanding participations under the Amended Credit Agreement in Dollar Letters of Credit held by each Dollar Revolving Commitment Increase, Credit Lender (iiiincluding each such Additional Revolving Credit Lender) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, will equal such Lender’s Pro Rata Percentage and (ii) undivided participation interests if, immediately prior to the Amendment No. 5 Effective Date, there are any Dollar Revolving Loans outstanding, such Dollar Revolving Loans shall, upon the effectiveness of the Additional Dollar Revolving Credit Commitments, be prepaid from the proceeds of additional Dollar Revolving Loans made under the Amended Credit Agreement (reflecting the increase in any outstanding LC Obligations the Total Dollar Revolving Credit Commitment), which prepayment shall be accompanied by accrued interest on the Dollar Revolving Loans being prepaid and any costs incurred by any Dollar Revolving Credit Lender in accordance with Section 2.15 of the Amended Credit Agreement.
(i) Upon the effectiveness of the Additional Multicurrency Revolving Credit Commitments, each Multicurrency Revolving Credit Lender immediately prior to such effectiveness will automatically and without further act be deemed to have assigned to each Additional Revolving Credit Lender, and each such Additional Revolving Credit Lender will automatically and without further act be deemed to have assumed, a portion of such Multicurrency Revolving Credit Lender’s participations under the Amended Credit Agreement in outstanding Swing Line Multicurrency Letters of Credit and, if applicable, Swingline Loans, such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations under the Amended Credit Agreement in Multicurrency Letters of Credit and Swingline Loans held by each Multicurrency Revolving Credit Lender (including each such Additional Revolving Credit Lender) will, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its such Lender’s Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date Percentage and (ii) agrees to take any further steps reasonably requested by the Administrative Agentif, in each case immediately prior to the extent deemed necessary by Amendment No. 5 Effective Date, there are any Multicurrency Revolving Loans outstanding, such Multicurrency Revolving Loans shall, upon the Administrative Agent to effectuate the provisions effectiveness of the preceding sentences. IfAdditional Multicurrency Revolving Credit Commitments, on such Revolving Commitment Increase Date, any be prepaid from the proceeds of additional Multicurrency Revolving Loans have been fundedmade under the Amended Credit Agreement (reflecting the increase in the Total Multicurrency Revolving Credit Commitment), then the Borrower which prepayment shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with accompanied by accrued interest on the reallocation of such outstanding Multicurrency Revolving Loans to effectuate being prepaid and any costs incurred by any Multicurrency Revolving Credit Lender in accordance with Section 2.15 of the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Amended Credit Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
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Samples: Incremental Assumption Agreement and Refinancing Facility Agreement (TransDigm Group INC)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Effective Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, no Default or Event of Default shall exist, (iii) any Loans made under such Revolving Commitment Increase (other than those made under a Last-Out Incremental (as defined below)) will rank pari passu in right of payment with existing Revolving Loans and the Liens securing any Loans made under such Revolving Commitment Increase will rank pari passu with the Liens securing the existing Revolving Loans, (iii) the representations final maturity date of such Revolving Commitment Increase shall be no earlier than the then Latest Maturity Date of any other Revolving Credit Commitments hereunder, (iv) the Borrower shall be in compliance with Article VI, whether or not in effect, as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase and warranties contained any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in Article VI each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15) and (v) the Senior Secured Leverage Ratio shall be no greater than 3.50 to 1.00 as of the end of the Test Period most recently ended after giving Pro Forma Effect to such Revolving Commitment Increase and any Acquisition permitted under this Agreement and/or any other transactions related to such Revolving Commitment Increase (and, in each case, with respect to any Revolving Commitment Increase, assuming a borrowing of the maximum amount of Loans available under such Revolving Commitment Increase and any Revolving Commitment Increase previously made pursuant to this Section 2.15, but excluding the proceeds from any borrowing under such Revolving Commitment Increase from any “net debt” determination); provided that the foregoing clauses (iv) and (v) shall not apply to any Revolving Commitment Increase pursuant to Amendment No. 3. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases after the Amendment No. 45 Effective Date shall not exceed $25,000,000.0. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other bank or other financial institution or institutional lender or investor (any such other bank or other financial institution or institutional lender or investor being called an “Additional Lender”), provided that the Administrative Agent, each Issuer and the Swing Loan Lender shall have consented (in each case, such consent not to be unreasonably withheld, delayed or conditioned) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases (other than the consent of each Issuer and Swing Loan Lender with respect to any Last-Out Incremental provided in the form of a term loan) if such consent by the Administrative Agent, the applicable Issuer and the Swing Loan Lender, as the case may be, would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any Person other than the Administrative Agent, the Borrower and the Lenders providing the applicable Revolving Commitment Increase, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that all references to “the date of such Loan or Issuance” or similar language in such Section 4.2 shall be deemed to refer to the effective date of such Incremental Amendment) and the satisfaction of such other conditions (if any) as the parties thereto shall agree and, to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received legal opinions, Board of Director resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date (other than changes to such legal opinion resulting from a Change in Law, change in fact or change to counsel’s form of opinion) or otherwise reasonably satisfactory to the Administrative Agent, together with such supplements and/or amendments to the Collateral Documents as the Administrative Agent shall reasonably request (including, in the case of the Mortgages, mortgage amendments and date down endorsements with respect to the applicable title insurance policies). Each Revolving Commitment Increase (other than a Last-Out Incremental incurred as a term loan) shall be documented as an increase to the Facility. Each Revolving Commitment Increase shall be on terms identical to those applicable to the Facility, except (x) with respect to any original issue discount or any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase; provided that if any of the Applicable Margins or the Applicable Unused Commitment Fee Rate with respect to any Revolving Commitment Increase (other than a Last-Out Incremental) exceed any of the Applicable Margins or Applicable Unused Commitment Fee Rate, as the case may be, with respect to the existing Revolving Credit Commitment Facility, the Applicable Margins and/or Applicable Unused Commitment Fee Rate, as applicable, shall be increased to equal the Applicable Margins and the Applicable Unused Commitment Fee Rate with respect to such Revolving Commitment Increase (the “MFN Provision”), (y) any such Revolving Commitment Increase may rank junior to the Obligations in right of payment in any distribution waterfall (a “Last-Out Incremental”) and such Last-Out Incremental may (1) have interest rate margins, interest rate floors, original issue discount, upfront fees, structuring, commitment and arranger fees (and any fee similar to any of the foregoing) that are true determined by the Company and correct on the lender or lenders providing the relevant Last-Out Incremental and as shall not be subject to the MFN Provision, (2) be in the form of one or more revolving credit facilities or term loans and (3) have other terms that are customary for “last-out” asset-based credit facilities and reasonably satisfactory to the Administrative Agent; it being understood and agreed that (x) the Administrative Agent may implement a dollar-for-dollar Reserve against the Borrowing Base in respect of the amount of any Last-Out Incremental and (y) in no event shall any Last-Out Incremental be entitled to receive payments under Section 10.3 prior to the payment in full of all amounts owing with respect to any Cash Management Obligations or Secured Hedge Obligations and (z) for terms applicable only after the then Latest Maturity Date. The Borrower shall use the proceeds of any Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each Revolving Commitment Increase pursuant to this Section 2.15, other than any Revolving Commitment Increase in the form of a Last-Out Incremental, (x) each Lender of the applicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase Dateof the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, except and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the extent that such representations and warranties specifically refer to an earlier date and percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) no Event of Default or Unmatured Event of Default exists or will exist as participations hereunder in Swing Loans held by each Lender of the applicable Class and (iii) participations in Protective Advances held by each Lender of the applicable Class (including each such Revolving Commitment Increase DateLender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders of such Class represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) This Section 2.15 shall supersede any provisions in Section 12.1 or Section 12.7 to the contrary.
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Revolving Commitment Increase. a. Pursuant to Section 2.14 of the Credit Agreement, each Increase Lender hereby severally and not jointly agrees to provide a new Revolving Commitment (ain each case, such Lender’s “Increase Commitment Amount”) Notwithstanding anything in the amount set forth next to the contrary such Increase Lender’s name on Annex 1 attached hereto. The aggregate Increase Commitment Amount, as set forth in Section 12.1such Annex 1, is equal to $50,000,000. In connection therewith, subject to the terms of the Credit Agreement, each Increase Lender severally and conditions set forth hereinnot jointly agrees to fund, and make one or more loans in immediately available funds to the Borrower on or after the First Amendment Effective Date, in each case up to an aggregate principal amount equal to its Applicable Percentage of the Aggregate Commitments (after giving effect to the Increase). After giving effect to the Increase, each Increase Lender shall have the right from time Revolving Commitment and Applicable Percentage set forth on the new Schedule 2.01 attached as Annex 2 hereto. [*] Certain schedules and exhibits have been omitted pursuant to timeItem 601(a)(5) of Regulation S-K that are not material and is the type that the registrant treats as private or confidential.
b. On the First Amendment Effective Date, (i) each Increase Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Revolving Lenders, as being required in order to cause an each Revolving Lender’s portion of the outstanding Revolving Loans to equal its Applicable Percentage of such outstanding Revolving Loans (after giving effect to the Increase and the use of such amounts to make payments to such other Revolving Lenders), and (ii) if necessary to keep the outstanding Revolving Loans ratable with the revised Applicable Percentages arising from the nonratable increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Date”), (ii) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver be deemed to the Administrative Agent a certificate of the Borrower dated have repaid and reborrowed any outstanding Revolving Loans as of the Revolving Commitment Increase First Amendment Effective Date signed by a Responsible Officer (with such reborrowing to consist of the Borrower certifying and attaching Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the resolutions adopted Borrower, in accordance with the requirements of Section 2.1(b) of the Credit Agreement in order to maintain such ratability). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Loan, shall be subject to indemnification by the Borrower approving or consenting pursuant to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (ithe provisions of Section 2.14(d) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to Credit Agreement if the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as deemed payment occurs other than on the last day of the Revolving Commitment Increase Daterelated Interest Periods.
Appears in 1 contract
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the The Borrower shall have the right may at any time or from time to timetime after the Second Restatement Date, by notice to cause an increase the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases in the amount of any Class of Revolving Credit Commitments of the Revolving Lenders (each such increase, a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that subject to the Limited Condition Acquisition provisions, at the time of any such Revolving Commitment Increase (i) both before and immediately after giving effect to such thereto), no Default or Event of Default (or, in the case of any Revolving Commitment IncreaseIncrease to be used to fund a Limited Condition Acquisition, no Event of Default under Section 10.1(a) or Unmatured Event of Default shall have occurred and be continuing Section 10.1(f) as of the effective date of such Revolving Commitment Increase (such date, the “Revolving Commitment Increase Transaction Agreement Date”), (ii) no such shall exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $10,000,000 20,000,000 (unless the aggregate provided that such amount of the Revolving Commitments then in effect is greater may be less than $390,000,00020,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (iii) after giving effect . Notwithstanding anything to such Revolving Commitment Increasethe contrary herein, the aggregate amount of the Revolving Commitments Commitment Increases shall not exceed $600,000,000150,000,000 (the “Incremental Availability”), and the Borrower may make a maximum of five (iv5) such requests. Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount and proposed terms of the relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Revolving Credit Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.15 and otherwise on terms reasonably acceptable to the Administrative Agent or by any other Person constituting an Eligible Assignee (any such other Person being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld or delayed) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 12.2(b) for an assignment of Loans or Revolving Credit Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Commitment Increases shall be increased without such become Revolving Lender’s prior written consent Credit Commitments (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent, Holdings, the Borrower, each Revolving Credit Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Effective Date”) of each of the conditions set forth in Section 4.2 (it being understood that may occur on all references to “the date of such Loan or after Issuance” or similar language in such Section 4.2 shall be deemed to refer to the Tenth Amendment Effective Date is a single effective date of such Incremental Amendment) and such other conditions as the parties thereto shall agree. The representations and warranties contained in the Loan Documents (or, in the case of any Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on used to fund a Permitted Acquisition or similar permitted Investment (and subject to including any Limited Condition Acquisition), the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(eSpecified Representations) shall not be applicable accurate in all material respects (or, if qualified by “materiality”, “Material Adverse Effect” or similar language, in all respects (after giving effect to such qualification)) before and after the 2014 Revolving Commitment Increase effectiveness of any Incremental Amendment referred to below and the only conditions to the 2014 any Revolving Commitment Increase shall be documented as an increase to the Revolving Facility and shall be on terms identical to those conditions set forth applicable to the Revolving Facility, except with respect to any commitment, arrangement, upfront or similar fees that may be agreed to among the Borrower and the lenders agreeing to participate in such Revolving Commitment Increase. The Borrower shall use Revolving Commitment Increases only as permitted pursuant to Section 4 8.9 hereof. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.15, (x) each Revolving Credit Lender of the Eleventh Amendmentapplicable Class immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Credit Lender providing a portion of the Revolving Commitment Increase of the applicable Class (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swing Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit, (ii) participations hereunder in Swing Loans held by each Revolving Credit Lender of the applicable Class and (iii) participations in Protective Advances held by each Revolving Credit Lender of the applicable Class (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders of such Class represented by such Xxxxxx’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Loans of such Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans of such Class made hereunder (reflecting such increase in Revolving Credit Commitments of such Class), which prepayment shall be accompanied by accrued interest on the Revolving Loans of such Class being prepaid and any costs incurred by any Revolving Credit Lender in accordance with Section 3.5. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(b) The Borrower This Section 2.15 shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this supersede any provisions in Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse 12.1 or warranty) from the Revolving Lenders (i) Revolving Loans, Section 12.7 to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)contrary.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (JOANN Inc.)
Revolving Commitment Increase. (a) Notwithstanding anything to the contrary in Section 12.1, subject Subject to the terms and conditions set forth herein, each party hereto acknowledges and agrees that (a) the Borrower Revolving Credit Commitments shall have be increased by $30,000,000 on the right from time to time, to cause an Second Incremental Amendment Effective Date (as defined below) (such increase in the Revolving Commitments of the Revolving Lenders (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments; provided that (i) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of such Revolving Commitment Increase (such datecommitments, the “Revolving Credit Commitment Increase DateIncrease”), (iib) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 from and after the Second Incremental Amendment Effective Date (unless i) the aggregate amount of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Credit Commitments shall not exceed be $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase160,000,000, (ii) the amount Incremental Revolving Lender shall have a Revolving Credit Commitment of the requested Revolving Commitment Increase, $30,000,000 and (iii) as applicablethe Incremental Revolving Lender shall for all purposes be deemed a Revolving Credit Lender, (c) for the avoidance of doubt, the identity Incremental Revolving Lender’s Revolving Credit Commitments shall be of each New the same Class and subject to identical terms (including, without limitation, with respect to the Applicable Rate, Maturity Date and commitment fees) as the Revolving Lender Credit Commitments existing immediately prior to giving effect to this Amendment and (d) the Borrower has elected to use clause (a) of the definition of “Available Incremental Amount” to effectuate the increase in Revolving Lender Credit Commitments contemplated hereby. Furthermore, the Incremental Revolving Lender, by delivering its signature page to this Amendment on the Second Incremental Amendment Effective Date, (i) confirms that it has agreed received a copy of the Credit Agreement and the other Loan Documents, together with copies of the financial statements referred to therein and such other documents and information as it has deemed appropriate to make its own credit analysis and decision to enter into this Amendment; (ii) agrees that it will, independently and without reliance upon the Administrative Agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in writing taking or not taking action under the Amended Credit Agreement; (iii) appoints and authorizes the Administrative Agent to increase take such action as agent on its Revolving Commitment hereunderbehalf and to exercise such powers under the Amended Credit Agreement and the other Loan Documents as are delegated to the Administrative Agent by the terms thereof, together with such powers as are reasonably incidental thereto; and (iv) the amount agrees that it will perform in accordance with their terms all of the respective Revolving Commitments obligations which by the terms of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there Amended Credit Agreement are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made performed by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the as a Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c)Credit Lender.
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and as of the Revolving Commitment Increase Date, except to the extent that such representations and warranties specifically refer to an earlier date and (ii) no Event of Default or Unmatured Event of Default exists or will exist as of the Revolving Commitment Increase Date.
Appears in 1 contract
Samples: Credit Agreement (MACOM Technology Solutions Holdings, Inc.)
Revolving Commitment Increase. (ai) Notwithstanding anything Borrower may, on one or more occasions after the Closing Date, deliver a written notice to Administrative Agent requesting an increase to the contrary in Section 12.1, subject to the terms and conditions set forth herein, the Borrower shall have the right from time to time, to cause an increase in the aggregate Revolving Commitments of the Revolving Lenders Commitment (a “Revolving Commitment Increase”) by adding to this Agreement one or more additional Eligible Assignees that are not already Revolving Lenders hereunder and that are reasonably satisfactory to the Administrative Agent, each Facing Agent and the Swing Line Lender (each, a “New Revolving Lender”) or by allowing one or more existing Revolving Lenders to increase their respective Revolving Commitments); provided that (ithat:
a) both before and immediately after giving effect to such Revolving Commitment Increase, no Event of Default or Unmatured Event of Default shall have occurred and be continuing as of the effective date of or would immediately occur after giving effect to such Revolving Commitment Increase and any application of proceeds therefrom;
b) the aggregate principal amount of the Revolving Commitment Increase pursuant to this Section 2.1(c) shall not exceed the ABL Incremental Amount for all such requests, and each such request shall be in an aggregate principal amount that is not less than $2,500,000 or, if less, the entire remaining unused amount under this Section 2.1(c);
c) Borrower shall be in compliance with the financial covenants set forth in Article 7 recomputed for the most recently ended Test Period after giving effect to any Revolving Commitment Increase and any application of proceeds therefrom; and
d) any loans made pursuant to a Revolving Commitment Increase shall be a Revolving Loan hereunder.
(ii) Any request under this Section 2.1(c) shall be submitted by Borrower in writing to Administrative Agent (which shall promptly forward copies to the Lenders). Notwithstanding any other provision in this Agreement, neither Administrative Agent nor any Lender shall have any commitment or obligation, express or implied, to offer to provide any Revolving Commitment Increase, and each Lender may accept or reject any request to provide any Revolving Commitment Increase in its sole and absolute discretion. Nothing contained herein shall obligate Administrative Agent to offer all or any portion of any Revolving Commitment Increase to any Lender.
(iii) Each Lender shall as soon as reasonably practicable specify in writing to Administrative Agent the principal amount of the proposed Revolving Commitment Increase that it is willing to provide (provided that any Lender not so responding within ten (10) Business Days (or such shorter period as may be specified by Administrative Agent) shall be deemed to have declined such a request), whether such amount is equal to, greater than, or less than such Lender’s Pro Rata Share of the Revolving Commitment. Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder. If the Lenders elect not to provide the full amount of a requested increase, and subject to the approval of the Administrative Agent and the Issuing Banks, the Borrower may also invite additional Eligible Assignees to become Lenders pursuant to a joinder agreement (each such Person a “New Lender”) in form and substance reasonably satisfactory to the Administrative Agent and its counsel. Nothing contained herein shall obligate Administrative Agent to allocate all or any portion of any Revolving Commitment Increase to any particular Lender, it being acknowledged that all final allocations shall remain subject to determination by Administrative Agent and Borrower.
(iv) Subject to the foregoing, any Revolving Commitment Increase requested by Borrower and agreed to by Lenders shall be effective (such date, the “Revolving Commitment Increase Date”), ) upon (iiA) no such Revolving Commitment Increase shall be in an amount less than $10,000,000 (unless the aggregate amount satisfaction of each of the Revolving Commitments then in effect is greater than $390,000,000), (iii) after giving effect to such Revolving Commitment Increase, the aggregate amount of the Revolving Commitments shall not exceed $600,000,000, (iv) no Revolving Lender’s Revolving Commitment shall be increased without such Revolving Lender’s prior written consent (which consent may be given or withheld in such Revolving Lender’s sole and absolute discretion) and (v) the only Revolving Commitment Increase that may occur on or after the Tenth Amendment Effective Date is a single Revolving Commitment Increase in an aggregate amount not exceeding $200,000,000 on (and subject to the occurrence of) the Eleventh Amendment Effective Date. The foregoing clause (i) and the following Section 2.10(b) and Section 2.10(e) shall not be applicable to the 2014 Revolving Commitment Increase and the only conditions to the 2014 Revolving Commitment Increase shall be those conditions precedent set forth in Section 4 of the Eleventh Amendment.
(b) The Borrower shall provide the Administrative Agent with written notice (a “Notice of Revolving Commitment Increase”) of its intention to increase the Revolving Commitments pursuant to this Section 2.10. Each such Notice of Revolving Commitment Increase shall specify (i) the proposed Revolving Commitment Increase Date, which date shall be no earlier than five (5) Business Days after receipt by the Administrative Agent of such Notice of Revolving Commitment Increase, (ii) the amount of the requested Revolving Commitment Increase, (iii) as applicable, the identity of each New Revolving Lender and Revolving Lender that has agreed in writing to increase its Revolving Commitment hereunder, and (iv) the amount of the respective Revolving Commitments of the then existing Revolving Lenders and the New Revolving Lenders from and after the Revolving Commitment Increase Date.
(c) On any Revolving Commitment Increase Date, the Revolving Lenders shall purchase and assume (without recourse or warranty) from the Revolving Lenders (i) Revolving Loans, to the extent that there are any Revolving Loans then outstanding, and (ii) undivided participation interests in any outstanding LC Obligations and any outstanding Swing Line Loans, in each case, to the extent necessary to ensure that after giving effect to the Revolving Commitment Increase, each Revolving Lender has outstanding Revolving Loans and participation interests in outstanding LC Obligations and Swing Line Loans equal to its Pro Rata Share of the Revolving Commitments. Each Revolving Lender shall make any payment required to be made by it pursuant to the preceding sentence via wire transfer to the Administrative Agent on the Revolving Commitment Increase Date. Each existing Revolving Lender (i) shall be automatically deemed to have assigned any outstanding Revolving Loans on the Revolving Commitment Increase Date and (ii) agrees to take any further steps reasonably requested by the Administrative Agent, in each case to the extent deemed necessary by the Administrative Agent to effectuate the provisions of the preceding sentences. If, on such Revolving Commitment Increase Date, any Revolving Loans have been funded, then the Borrower shall be obligated to pay any breakage fees or costs that are payable pursuant to Section 3.5 in connection with the reallocation of such outstanding Revolving Loans to effectuate the provisions of this Section 2.10(c).
(d) Each Revolving Commitment Increase shall become effective on its Revolving Commitment Increase Date and upon such effectiveness: (i) the Administrative Agent shall record in the register each then New Revolving Lender’s information as provided in the applicable Notice of Commitment Increase and pursuant to an administrative questionnaire that shall be executed and delivered by each New Revolving Lender to the Administrative Agent on or before such Revolving Commitment Increase Date, (ii) Schedule 1.1(a) hereof shall be amended and restated to set forth all Revolving Lenders (including any New Revolving Lenders) that will be Revolving Lenders hereunder after giving effect to such Revolving Commitment Increase (which amended and restated Schedule 1.1(a) shall be set forth in Annex I to the applicable Notice of Revolving Commitment Increase) and the Administrative Agent shall distribute to each Revolving Lender (including each New Revolving Lender) a copy of such amended and restated Schedule 1.1(a), and (iii) each New Revolving Lender identified on the Notice of Revolving Commitment Increase for such Revolving Commitment Increase shall be a “Lender” and a “Revolving Lender” for all purposes under this Agreement.
(e) As a condition precedent to any Revolving Commitment Increase, the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Revolving Commitment Increase Date signed by a Responsible Officer of the Borrower certifying and attaching the resolutions adopted by the Borrower approving or consenting to such Revolving Commitment Increase and certifying that, before and after giving effect to such Revolving Commitment Increase, (i) the representations and warranties contained in Article VI made by it are true and correct on and 3.3 as of the Revolving Commitment Increase Date, except and (B) delivery to Administrative Agent of each of the following documents: (1) a certificate signed by an Authorized Officer of Borrower Representative confirming compliance with all conditions precedent for any such Revolving Commitment Increase, including compliance with the conditions precedent set forth in Section 3.3; (2) if requested in writing by a Lender, executed Revolving Notes issued by Borrower in accordance with Section 2.11; (3) an amendment to this Agreement and, if applicable, the other Loan Documents, to effectuate the terms of this Section 2.1(c); and (4) any other documents reasonably requested by Administrative Agent, in each case all in form and substance reasonably acceptable to Administrative Agent. Any Revolving Commitment Increase shall be offered on those terms and conditions that is then in effect for the outstanding Revolving Commitment.
(v) With respect to any Revolving Commitment Increase contemplated hereunder, this Section 2.1(c) shall supersede any provisions of Section 12.4 to the extent contrary, and any amendment to this Agreement that is reasonably required to give effect to or to evidence any Revolving Commitment Increase pursuant to and in accordance with this Section 2.1(c), then such representations and warranties specifically refer to an earlier date and amendment shall be effective if executed by the Credit Parties, each Lender (iiincluding, for the avoidance of doubt, each New Lender) no Event of Default or Unmatured Event of Default exists or will exist as of providing the Revolving Commitment Increase Dateand Administrative Agent.
Appears in 1 contract
