Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date. (b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans. (c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement. (d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions: (i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect. (ii) The Collateral and Guarantee Requirement shall have been satisfied. (iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions. (iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent. (v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date. (vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date. (vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer. (viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied. (ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Rite Aid Corp)
Revolving Commitments. (ai) Subject On the Closing Date, the Revolving Loans of each Lender outstanding under the Existing Credit Facility (each as defined therein) on the Closing Date (immediately prior to the occurrence thereof), as set forth as “Existing Closing Date Loans” in Schedule 2.1(a) (i), shall be continued (on a cashless basis), and shall constitute and remain outstanding as Revolving Loans hereunder. The continuations of such Revolving Loans shall not be subject to any breakage or similar costs that might otherwise be payable pursuant to Section 2.16(c) or the equivalent provision of the Existing Credit Agreement. In furtherance of the foregoing, on the Closing Date, the initial Lenders hereunder shall make and receive payments among themselves, in a manner acceptable to and approved by the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are, on (and immediately after the occurrence of) the Closing Date, held ratably by the Revolving Lenders in accordance with the respective Revolving Commitments of the Revolving Lenders on the Closing Date.
(ii) During the Revolving Commitment Period, subject to the terms and conditions set forth hereinhereof, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure severally agrees to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving which will be made in Dollars, to Borrowers in an aggregate amount up to but not exceeding such Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “’s Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party ; provided that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After after giving effect to the borrowing (if any) making of any Revolving Loans in no event shall the Total Utilization of Revolving Loans Commitments exceed the Revolving Commitments then in effect. Each Lender’s Revolving Commitment shall expire on the Amendment Effective Date, Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Borrowing Base Amount on Revolving Loans and the Amendment Effective Date Revolving Commitments shall be paid in full no less later than the sum of such date. -43- CREDIT AGREEMENT (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.PATTERN REVOLVER)
Appears in 1 contract
Sources: Credit and Guaranty Agreement
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all each Lender severally (and not jointly) agrees to make Revolving Commitments in effect immediately prior Loans to the Amendment Effective Date (Borrower in Dollars from time to time during the “Existing Revolving Commitments”) Availability Period in an aggregate principal amount that will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect result in (i) the LC Commitment of any Issuing Bank such ▇▇▇▇▇▇’s Revolving Exposure exceeding such ▇▇▇▇▇▇’s Revolving Commitment, or (ii) the obligation of Aggregate Revolving Exposure exceeding the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of aggregate Revolving Commitments. Within the Credit Agreement, in each case as in effect immediately prior foregoing limits and subject to the Amendment Effective Dateterms and conditions set forth herein, the Borrower may borrow, prepay (without any penalty, premium or other prepayment fee) and reborrow Revolving Loans.
(b) Subject to the terms and conditions set forth hereinin Section 4.03, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a IPO Incremental Revolving Lender has agreed to provide one or more IPO Incremental Revolving Credit Commitment Increases in an aggregate principal amount for all such IPO Incremental Revolving Credit Commitment Increases of $100,000,000 (each, an “IPO Incremental Revolving Commitment Increase” and a Lender under the Credit Agreement and (ii) collectively, the “IPO Incremental Revolving Commitment” of each New Revolving Lender (the “New Revolving CommitmentsCommitment Increases”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans).
(c) For all purposes of the Senior Loan Documents, (i) the Each IPO Incremental Revolving Commitment of each New Revolving Lender, and Increase shall be on the Loans made by each New Revolving Lender pursuant to such same terms as the Effective Date Revolving Commitments, shall constitute a be deemed to be “Revolving CommitmentCommitments” and will, together with the “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to Revolving Commitments” be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) treated as one Class of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effectCommitments.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make to the Borrower from time to time during the Revolving Commitment Period, revolving credit loans (“Revolving Loans”), in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or L/C Obligations then outstanding and (ii) the obligation aggregate principal amount of the Swingline Lender Loans then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying and reborrowing the Revolving Loans in whole or in part, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to make time be Eurodollar Loans or Base Rate Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 3.2 and 4.3. Not more than $50,000,000 of Revolving Loans and Swingline Loans pursuant to Section 2.04 of shall be made on the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Closing Date.
(b) Subject to All Revolving Loans shall be denominated in Dollars; provided, however, the terms and conditions set forth hereinBorrower may elect, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered by notice from Borrower to the Administrative AgentAgent in accordance with the procedures set forth in Section 3.2 below, on to borrow Revolving Loans in one or prior more Alternate Currencies up to $35,000,000 at any time outstanding; provided, further, that for the period from the Closing Date until the Administrative Agent so advises to the Amendment Effective Datecontrary, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender Loans shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.requested and provided in Mexican Pesos;
(c) For The Borrower agrees to repay all purposes of outstanding Revolving Loans in Dollars (with respect to Dollar Loans) or in the Senior Loan Documents, applicable Alternate Currency (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant with respect to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Alternate Currency Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above), in each any case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Termination Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or L/C Obligations then outstanding and (ii) the obligation aggregate principal amount of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 then outstanding, does not exceed on any date the lesser of (A) such Lender’s Revolving Commitment and (B) such Lender’s Revolving Percentage of (x) if the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has Parent Guarantee is executed and delivered to the Administrative Agent, Agent on or prior to January 14, 2009 (1) until such execution and delivery, $50,000,000 and (2) thereafter, the Amendment Effective DateTotal Revolving Commitment and (y) if the Parent Guarantee is not executed and delivered to the Administrative Agent on or prior to January 14, a signature page 2009, at all times $50,000,000 (the amount applicable at any time pursuant to this Amendment as a “New Revolving Lender” shall become the foregoing clause (x) or continue to be(y), as applicablethe same may be adjusted pursuant to Section 2.21, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Maximum Outstanding Amount” at such time). References in the immediately preceding sentence to $50,000,000 shall not be affected by any Revolving Commitment” Commitment Increase Amount (except to the extent such Revolving Commitment Increase Amount results in the Maximum Outstanding Amount being reinstated to up to $50,000,000 following the termination of each New any Lender’s Revolving Lender (Commitment pursuant to Section 2.21). During the “New Revolving Commitments”) will be Commitment Period the amount of Borrower may use the commitment set forth Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with respect to such New Revolving Lender on Annex I heretothe terms and conditions hereof. The New Revolving Commitments of Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the New Revolving Lenders are several Borrower and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure notified to make Revolving Loansthe Administrative Agent in accordance with Sections 2.2 and 2.9.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(db) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Termination Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Loral Space & Communications Inc.)
Revolving Commitments. The Borrower shall have the right, exercisable up to four (a4) Subject times, to request increases in the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination aggregate amount of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered by providing written notice to the Administrative Agent, on or prior which notice shall be irrevocable once given; provided that after giving effect to any and all such increases the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the aggregate amount of the commitment set forth Revolving Commitments shall not exceed One Billion Two Hundred Million Dollars ($1,200,000,000). Each such increase in the Revolving Commitments must be an aggregate minimum amount of $25,000,000 (or such lesser amount as the Borrower and the Administrative Agent may agree in writing) and integral multiples of $5,000,000 in excess thereof. The Administrative Agent, in consultation with the Borrower, shall manage all aspects of the syndication of such increase in the Revolving Commitments, including decisions as to the selection of the existing Lenders and/or other banks, financial institutions and other institutional lenders to be approached with respect to such New Revolving Lender on Annex I hereto. The New increase and the allocations of the increase in the Revolving Commitments among such existing Lenders and/or other banks, financial institutions and other institutional lenders and the Fees to be paid for such increased Revolving Commitments; provided, that, the consent of the New Revolving Lenders are several Borrower (not to be unreasonably withheld, conditioned or delayed) shall be required for all banks, financial institutions and no New Revolving institutional lenders that agree to provide any such increase in the event the consent of the Borrower would be required if such bank, financial institution or institutional lender were to become a Lender pursuant to Section 13.5(b)(iii)(A). No Lender shall be responsible for obligated in any other New Revolving Lender’s failure way whatsoever to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the increase its Revolving Commitment or provide a new Revolving Commitment, and any new Lender becoming a party to this Agreement in connection with any such requested increase must be an Eligible Assignee subject to and in accordance with the provisions of each New Section 13.5(b). If a new Revolving Lender becomes a party to this Agreement, or if any existing Revolving Lender is increasing its Revolving Commitment, such Lender shall on the date it becomes a Revolving Lender hereunder (or in the case of an existing Revolving Lender, increases its Revolving Commitment) (and as a condition thereto) purchase from the other Revolving Lenders its Revolving Commitment Percentage (determined with respect to the Revolving Lenders’ respective Revolving Commitments and after giving effect to the increase of Revolving Commitments) of any outstanding Revolving Loans, by making available to the Administrative Agent for the account of such other Revolving Lenders, in same day funds, an amount equal to (A) the portion of the outstanding principal amount of such Revolving Loans to be purchased by such Lender, plus (B) the aggregate amount of payments previously made by each New the other Revolving Lender pursuant Lenders under Section 2.2(j) that have not been repaid, plus (C) interest accrued and unpaid to and as of such date on such portion of the outstanding principal amount of such Revolving Loans. The Borrower shall pay to the Revolving Lenders amounts payable, if any, to such Revolving Commitments, shall constitute Lenders under Section 5.4 as a “Revolving Commitment” and “result of the prepayment of any such Revolving Loans”, respectively, under . Effecting the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination increase of the Existing Revolving Commitments pursuant to under this Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are is subject to the satisfaction following conditions precedent: (w) no Default or Event of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans Default shall exist on the Amendment Effective Date, the conditions set forth in paragraphs (a)effective date of such increase, (bx) the representations and (c) of Section 4.02 of warranties made or deemed made by the Credit Agreement Borrower and any other Loan Party in any Loan Document to which such Loan Party is a party shall be satisfied true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on the effective date of such increase except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Amendment Effective Datesuch earlier date) and except for changes in factual circumstances specifically and expressly permitted hereunder, (y) payment of any and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered all Fees required in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New such increased Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(ivz) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to each of the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documentsfollowing, in form and substance reasonably satisfactory to the Administrative Agent: (i) if not previously delivered to the Administrative Agent, copies certified by the Secretary or Assistant Secretary of (A) all partnership or other necessary action taken by the Borrower to authorize such increase and (B) all partnership or other necessary action taken by each Guarantor authorizing the guaranty of such increase; and (ii) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders covering such matters as reasonably requested by the Administrative Agent; and (iii) to the extent requested by the applicable Lender, a new Revolving Note executed by the Borrower, payable to such new Revolving Lenders and replacement Revolving Notes executed by the Borrower, payable to any existing Revolving Lenders increasing their Revolving Commitments, in the amount of such Revolving Lender’s Revolving Commitment at the time of the effectiveness of the applicable increase in the aggregate amount of the Revolving Commitments. In connection with any increase in the aggregate amount of the Revolving Commitments pursuant to this Section 2.15(a), any Revolving Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including the Patriot Act.
Appears in 1 contract
Sources: Revolving Credit and Term Loan Agreement (Spirit Realty, L.P.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $200,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$200,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth herein--------------------- hereof, effective as each Revolving Lender severally agrees to make revolving credit loans ("Revolving Loans"; together with the Term Loans, the "Loans") to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which does not exceed the amount of such Lender's Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.5 and 2.10.
(b) Subject to the terms The Borrower and conditions set forth hereinany one or more Lenders (including New Revolving Lenders) may, on the Amendment Effective Date, simultaneously with the termination consent of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on from time to time agree that such Lenders shall make, obtain or prior increase the amount of such Lenders' Revolving Commitments by executing and delivering to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under Administrative Agent an Increased Facility Activation Notice specifying (i) the Credit Agreement amount of such increase and (ii) the “applicable Increased Facility Closing Date. Notwithstanding the foregoing, without the consent of the Required Lenders, (w) the aggregate amount of incremental Revolving Commitment” Commitments obtained pursuant to this paragraph shall not exceed $40,000,000 and the Total Revolving Commitments shall at no time exceed $175,000,000, (x) the incremental Revolving Commitments may not be made, obtained or increased after the occurrence and during the continuation of a Default or Event of Default, (y) each New increase effected pursuant to this paragraph shall be in a minimum amount of at least $5,000,000 and (z) no more than five Increased Facility Closing Dates may be selected by the Borrower during the term of this Agreement. Any incremental Revolving Commitments shall be governed by this Agreement and the other Loan Documents. No Lender (shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. Notwithstanding anything to the “New Revolving Commitments”) will contrary contained herein, no increase described in this paragraph may be made or obtained unless and until the Administrative Agent is satisfied that the Collateral Agent under the KGE Collateral Agreement shall have received additional certificates representing first mortgage bonds pledged pursuant to the KGE Collateral Agreement in an aggregate principal amount at least equal to the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loansincrease.
(c) For all purposes of Any additional bank, financial institution or other entity that, with the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing consent of the Borrower and the organization Administrative Agent (which consent shall not be unreasonably withheld), elects to become a "Lender" under this Agreement in connection with any transaction described in Section 2.4(b) shall execute a New Revolving Lender Supplement (each, a "New Revolving Lender -------------------- Supplement"), substantially in the form of Exhibit E-1, whereupon such bank, ---------- financial institution or other entity (a "New Revolving Lender") shall become a -------------------- Lender for all purposes and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent same extent as if originally a party hereto and shall have received a certificate, dated the Amendment Effective Date be bound by and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable entitled to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness benefits of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfiedAgreement.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans ("Revolving Loans") to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender's Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or Obligations then outstanding and (ii) the obligation aggregate principal amount of the Swingline Lender Loans then outstanding, does not exceed the amount of such Lender's Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to make Swingline time be Eurodollar Loans pursuant to Section 2.04 of or ABR Loans, as determined by the Credit Agreement, in each case as in effect immediately prior Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.5 and 2.12.
(b) Subject to the terms The Borrower and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the any one or more Revolving Commitments pursuant to clause Lenders (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “including New Revolving Lender” Lenders) may agree that each such Lender shall become obtain a Revolving Commitment or continue to beincrease the amount of its existing Revolving Commitment, as applicable, a in each case by executing and delivering to the Administrative Agent an Increased Revolving Lender and a Lender under Facility Activation Notice specifying (i) the Credit Agreement amount of such increase and (ii) the “Increased Revolving Commitment” Facility Closing Date. Notwithstanding the foregoing, without the consent of each New Revolving Lender the Required Lenders, (i) the “New Revolving Commitments”) will be the aggregate amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New incremental Revolving Commitments obtained pursuant to this paragraph shall not exceed $40,000,000 and (ii) no more than one Increased Revolving Facility Closing Date may be selected by the Borrower during the term of the New Revolving Lenders are several and no New Revolving this Agreement. No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For all purposes Any additional bank, financial institution or other entity which, with the consent of the Senior Loan DocumentsBorrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a "Revolving Lender" under this Agreement in connection with any transaction described in Section 2.2(b) shall execute a New Revolving Lender Supplement (i) each, a "New Revolving Lender Supplement"), substantially in the Revolving Commitment form of each Exhibit J-1, whereupon such bank, financial institution or other entity (a "New Revolving Lender, and the Loans made by each New ") shall become a Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” for all purposes and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination For the purpose of providing that the Existing respective amounts of Revolving Commitments pursuant Loans (and Eurodollar Tranches in respect thereof) held by the Revolving Lenders are held pro rata according to Section 1.2(a) abovetheir respective Revolving Commitments, and unless otherwise agreed by the effectiveness Administrative Agent, on the Increased Revolving Facility Closing Date, the Borrower shall borrow a Revolving Loan from each relevant Lender in an amount determined by reference to the amount of the New Revolving Commitments pursuant to Section 1.2(b) aboveeach Type of Loan (and, in the case of Eurodollar Loans, of each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
Eurodollar Tranche) which would then have been outstanding from such Lender if (i) After giving effect to each such termination and effectiveness and the borrowing (if any) of Revolving Loans Type or Eurodollar Tranche had been borrowed or effected on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Increased Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Facility Closing Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the Borrowerother Lenders in the same Eurodollar Tranche (or, in each case addressed to until the Administrative Agent and expiration of the Lenders under the Credit Agreementthen-current Interest Period, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date rate as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of be agreed upon between the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agentrelevant Lender).
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of each Lender agrees to make Tranche A Revolving Loans to ▇▇▇▇▇ from time to time during the Amendment Effective Date, all Revolving Commitments Availability Period in effect immediately prior an aggregate principal amount that will not result in such Lender's Tranche A Revolving Exposure exceeding such Lender's Tranche A Revolving Commitment. Within the foregoing limits and subject to the Amendment Effective Date (the “Existing terms and conditions set forth herein, ▇▇▇▇▇ may borrow, prepay and reborrow Tranche A Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective DateLoans.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of each Lender agrees to make Tranche B Revolving Loans to M-I LLC from time to time during the Revolving Commitments pursuant to clause (a) above, (i) each Lender Availability Period in an aggregate principal amount that has executed will not result in such Lender's Tranche B Revolving Exposure exceeding such Lender's Tranche B Revolving Commitment. Within the foregoing limits and delivered subject to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender terms and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment conditions set forth with respect to such New Revolving Lender on Annex herein, M-I hereto. The New Revolving Commitments of the New Revolving Lenders are several LLC may borrow, prepay and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make reborrow Tranche B Revolving Loans.
(c) For all purposes of the Senior Loan DocumentsThe Borrowers, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under agree pursuant to Chapter 346 ("Chapter 346") of the Credit Texas Finance Code, that Chapter 346 (which relates to open-end line of credit revolving loan accounts) shall not apply to this Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent Notes or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on Loan and that neither the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Notes nor any Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date Loan shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) governed by Chapter 346 or subject to its provisions in any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officermanner whatsoever.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (aA) Subject to the terms and conditions set forth herein, effective as of herein and in the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Restated Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentsagrees that, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Restatement Effective Date, such Revolving Lender shall have a Revolving Commitment in the amount set forth under the heading “Revolving Commitment” opposite its name on Schedule 2.01 attached to the Restated Credit Agreement and shall be entitled to all the rights of, and be bound by all of the obligations of, Lenders with Revolving Commitments under the Restated Credit Agreement and the other Loan Documents.
(B) Each party hereto acknowledges and agrees that, on and as of the Restatement Effective Date, Schedule 2.01 attached to the Restated Credit Agreement sets forth all the Revolving Commitments of all the Revolving Lenders in effect on and as of the Restatement Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel that no Person whose name does not appear on Schedule 2.01 attached to the Borrower Restated Credit Agreement under the heading “Revolving Lenders” shall have, or shall be deemed to have, on and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel as of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Restatement Effective Date, a Revolving Commitment under the Restated Credit Agreement or be a Revolving Lender thereunder. Without limiting the foregoing, the Revolving Commitment (as defined in substantially the forms delivered in connection with Refinancing Amendment No. 2Existing Credit Agreement) of each Person whose name is set forth on Schedule 2.01 hereto under the heading “Exiting Revolving Lenders” (each such Person, dated an “Exiting Revolving Lender”) shall terminate on and as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Restatement Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are such Person shall cease to be made on a Revolving Lender under the Amendment Effective DateRestated Credit Agreement and, in such capacity, shall cease to have any obligations under, and shall cease to be a party to, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective DateRestated Credit Agreement.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Concentrix Corp)
Revolving Commitments. Each Revolving Lender severally and not jointly agrees, during the Availability Period, (a1) Subject to on the terms and conditions hereinafter set forth hereinto make Revolving Advances denominated in Dollars or Alternative Currencies to any Borrower from time to time and (2) in the event that any Revolving Lender (other than an Initial Lender) shall have become a Non-Funding Lender, effective as of the Amendment Effective Dateto make Supplemental Advances (each, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated collectively with any supplemental advances made pursuant to Section 2.08(b2.01(b) below, a “Supplemental Advance”) denominated in Dollars or Alternative Currencies, as applicable, on the Closing Date to any Borrower in an amount deemed to be requested by such Borrower under Section 2.05, in the case of the Credit Agreement; providedeach of clauses (1) and (2), however, in an aggregate amount that the foregoing shall would not affect result (after giving effect to any application of proceeds from such Advances pursuant to Section 2.03(a)) in (i) the LC Commitment Dollar Equivalent of any Issuing Bank or such Lender’s Revolving Credit Exposure exceeding such Lender’s Revolving Commitment, (ii) the obligation Dollar Equivalent of the Swingline Lender Aggregate Revolving Credit Exposure exceeding the Aggregate Revolving Commitments and (iii) the Dollar Equivalent of the Aggregate Revolving Credit Exposure denominated in Alternative Currencies exceeding the Alternative Currency Sublimit. Additionally, prior to make Swingline Loans the Closing Date, no extensions of credit may be made under the Closing Date Revolver Portion. Each Borrowing shall be in an aggregate amount equal to the Applicable Minimum Amount and shall consist of Advances of the same Type and currency made on the same day by the Lenders ratably according to their respective Commitments. Within the limits of each Lender’s Commitment, each Borrower may borrow under this Section 2.01(a), prepay Advances pursuant to Section 2.04 of 2.12 and reborrow under this Section 2.01(a). Notwithstanding anything to the Credit Agreementcontrary in this Agreement or any other Loan Document, in each case as in effect immediately no Revolving Lender shall make any Revolving Advance to New HoldCo prior to the Amendment Effective Closing Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Steris Corp)
Revolving Commitments. (a) Subject to the terms and conditions herein set forth hereinforth, effective as of each Lender hereby severally, but not jointly, agrees to make revolving loans in Dollars (each such loan, a “Revolving Loan”), not to exceed the Amendment Effective DateRevolving Commitment Amount, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect Borrowers as follows: (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, an initial borrowing on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Closing Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of $15,000,000 (the “Initial Borrowing”) and (ii) additional borrowings on each Subsequent Revolver Funding Date in respect of which a Notice of Borrowing has been delivered in an amount not to exceed the Availability or a greater amount agreed to in writing by the Administrative Agent or each Lender in their sole discretion. The proceeds of such Revolving Loans outstanding on shall be deposited into the Amendment Effective DateTerm and Revolving Loan Priority Collateral Deposit Account. The Revolving Loans and Revolving Loan proceeds shall be allocated to the Borrowers in the manner specified in the Notice of Borrowing therefor and used to pay (i) certain pre-petition expenses of the Borrowers and other costs authorized by the Bankruptcy Court in each case acceptable to the Lenders, (Bii) the LC Exposure on the Amendment Effective Date Obligations hereunder and under all other Loan Documents (including, without limitation, interest, fees, expenses and other amounts of whatever nature and Agent Expenses) and (Ciii) post-petition operating expenses and to fund working capital of the Borrowers and other costs and expenses of administration of the Chapter 11 Cases (excluding wind-down expenses and payments with respect any Additional Senior Debt outstanding on management incentive plan unless agreed to in writing by the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth Lenders in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documentstheir sole discretion), in form each case subject to Availability and substance reasonably satisfactory not to exceed the Revolving Commitment Amount. Notwithstanding the preceding, prior to the Administrative Agententry by the Bankruptcy Court of a Final Order, the Revolving Commitment Amount shall be limited to the sum of $25,000,000, to the extent authorized by the Interim Order. For the avoidance of doubt, there shall not be more than one borrowing in any fiscal week.
Appears in 1 contract
Revolving Commitments. (a) Subject Upon the prior written notice to the terms and conditions set forth herein, effective as Administrative Agent (which notice the Administrative Agent shall promptly transmit to each of the Amendment Effective DateRevolving Lenders), all the Borrower shall have the right, without premium or penalty, on any day, permanently to terminate or reduce the Revolving Commitments of any Class, as determined by the Borrower, in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreementwhole or in part; provided, however, that the foregoing shall not affect provided that:
(i) any such termination or reduction shall apply proportionately and permanently to reduce the LC Commitment Revolving Commitments of each of the Revolving Lenders of such Class, except that, notwithstanding the foregoing, the Borrower may allocate any Issuing Bank termination or reduction of Revolving Commitments among Classes of Revolving Commitments at its direction, (ii) any partial reduction pursuant to this Section 2.06(a) shall be in an aggregate amount of at least $1,000,000 or any whole multiple of $1,000,000 in excess thereof, (iii) after giving effect to such termination or reduction and to any prepayments of Revolving Loans or cancellation or cash collateralization of Letters of Credit made on the obligation date thereof in accordance with this Agreement, the aggregate Dollar Amount of the Swingline Lender Revolving Lenders’ Revolving Exposure for such Class shall not exceed the Total Revolving Commitments for such Class, and (iv) if, after giving effect to make Swingline Loans pursuant to Section 2.04 any reduction of the Credit AgreementRevolving Commitments, in each case as in effect immediately prior the LC Sublimit or the Swingline Sublimit with respect to the Amendment Effective Date.
(b) Subject applicable Revolving Facility exceeds the amount of Total Revolving Commitments thereunder, such sublimit shall be automatically reduced by the amount of such excess. Except as provided above, the amount of any such Revolving Commitment reduction shall not be applied to the terms and conditions set forth hereinLC Sublimit or the Swingline Sublimit unless otherwise specified by the Borrower. Notwithstanding the foregoing, on the Amendment Effective Date, simultaneously with the Borrower may rescind or postpone any notice of termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, if such termination would have resulted from a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” refinancing of each New Revolving Lender (the “New Revolving Commitments”) will be the amount all of the commitment set forth with respect to such New applicable Revolving Lender on Annex I heretoFacility, which refinancing is not consummated or is otherwise delayed. The New Unless previously terminated, all Revolving Commitments of a Class shall terminate on the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant Maturity Date applicable to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit AgreementClass.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender (acting through any of the Amendment Effective Dateits branches or affiliates) severally agrees to make revolving credit loans (“Revolving Loans”) in Dollars or in one or more Foreign Currencies (such Revolving Loans, all Revolving Commitments in effect immediately prior “Foreign Currency Loans”) to the Amendment Effective Date Borrowers from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added (after giving effect to the “Existing Revolving Commitments”use of proceeds thereof) will be terminated pursuant to Section 2.08(b) the sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) such Lender’s Revolving Percentage of the LC Commitment sum of any Issuing Bank or (x) the L/ C Obligations then outstanding and (y) the aggregate principal amount of the Revolving Loans (including the Dollar Equivalent of Foreign Currency Loans) then outstanding, (ii) such Lender’s Swingline Exposure then outstanding, does not exceed the obligation amount of such Lender’s Revolving Commitment and (iii) the Swingline Lender Total Revolving Extensions of Credit outstanding at such time (including the Dollar Equivalent of any Revolving Extensions of Credit outstanding in currencies other than Dollars) does not exceed the Total Revolving Commitments. During the Revolving Commitment Period the Borrowers may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Revolving Loans may from time to make Swingline time be Eurocurrency Loans pursuant to Section 2.04 or (other than in the case of Foreign Currency Loans) ABR Loans, as determined by the Credit Agreement, in each case as in effect immediately prior applicable Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.5 and 2.13.
(b) Subject to the terms and conditions set forth hereinhereof, on each Revolving Lender agrees to make Foreign Currency Loans to the Amendment Effective DateBorrowers from time to time during the Revolving Commitment Period; provided that (i) after giving effect to the requested Foreign Currency Loan, simultaneously with the termination Dollar Equivalent of the sum of the aggregate principal amount of Foreign Currency Loans and any L/C Exposure denominated in any L/C Foreign Currency outstanding at such time does not exceed the Foreign Currency Sublimit, (ii) after giving effect to the requested Foreign Currency Loan (and the use of proceeds thereof), the sum of (x) such Lender’s Revolving Percentage of the sum of (1) the L/C Obligations then outstanding (including the Dollar Equivalent of any L/C obligations denominated in any L/C Foreign Currency) and (2) the aggregate principal amount of the Revolving Commitments pursuant to clause Loans (aincluding the Dollar Equivalent of Foreign Currency Loans) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement then outstanding and (iiy) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be such Lender’s Swingline Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment and (iii) the commitment set forth with respect to Total Revolving Extensions of Credit outstanding at such New time (including the Dollar Equivalent of any Revolving Lender on Annex I heretoExtensions of Credit outstanding in currencies other than Dollars) does not exceed the Total Revolving Commitments. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender Foreign Currency Loans shall be responsible for any other New Revolving Lender’s failure to make Revolving Eurocurrency Loans.
(c) For Each Borrower shall repay all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “its outstanding Revolving Loans”, respectivelyincluding Foreign Currency Loans, under on the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit AgreementInitial Maturity Date.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject Notwithstanding anything to the satisfaction contrary contained herein, each Lender at its option may make any Loan to any Additional Borrower by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the following conditions:
(i) After giving effect obligation of such Additional Borrower to repay such termination Loan in accordance with the terms of this Agreement and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and not cause any Borrower or other Loan Party to incur as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel date of the Borrower, in each case addressed to the Administrative Agent and the Lenders exercise of such option any greater liability than it shall then have under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsSection 2.19 or Section 2.20(a).
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Tempur Sealy International, Inc.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (together, the “Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Revolving Lender’s Revolving Commitment Percentage of the Amendment Effective Datesum of the then outstanding L/C Obligations and the then outstanding Swing Line Loans, does not exceed the amount of such Lender’s Revolving Commitment then in effect. During the Revolving Commitment Period, the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all Revolving Commitments in effect immediately prior to accordance with the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Dateterms and conditions hereof.
(b) Subject The Revolving Loans shall be made in Dollars and may from time to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, time be (i) each Lender that has executed Eurocurrency Loans, (ii) ABR Loans or (iii) a combination thereof, as determined by the Borrower and delivered notified to the Administrative AgentAgent in accordance with subsections 2.2 and 3.2; provided that no Revolving Loan shall be made as a Eurocurrency Loan after the day that is one month prior to the Revolving Facility Maturity Date.
(c) The Borrower agrees that, upon the request to the Administrative Agent by any Revolving Lender made on or prior to the Amendment Effective DateClosing Date or in connection with any assignment pursuant to subsection 10.6(b), in order to evidence such Revolving Lender’s Revolving Loans, the Borrower will execute and deliver to such Revolving Lender a promissory note substantially in the form of Exhibit H-1, with appropriate insertions as to payee, date and principal amount (each, as amended, supplemented, replaced or otherwise modified from time to time, a signature page “Revolving Note”), payable to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a such Revolving Lender and a Lender under representing the Credit Agreement and (ii) obligation of the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be Borrower to pay the amount of the commitment set forth with respect to Revolving Commitment of such New Revolving Lender on Annex I hereto. The New or, if less, the aggregate unpaid principal amount of all Revolving Commitments of the New Revolving Lenders are several and no New Loans made by such Revolving Lender to the Borrower. Each Revolving Note shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) be dated the Revolving Commitment of each New Revolving LenderClosing Date, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior be stated to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case mature on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination Revolving Facility Maturity Date and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion provide for the payment of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, interest in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection accordance with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionssubsection 3.1.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (HSI IP, Inc.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $200,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased after the “occurrence and during the continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoat least $25,000,000. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of from time to time during the Amendment Effective DateRevolving Commitment Period, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) each Tranche 1 Revolving Lender severally agrees to make to QVC revolving credit loans denominated in Dollars or an Alternative Currency (“Tranche 1 Revolving Loans”) in an aggregate principal amount that will not result at the LC time of such Borrowing in (A) the Dollar Amount of such Lender’s Tranche 1 Outstanding Revolving Credit exceeding such Lender’s Tranche 1 Revolving Commitment or (B) the Dollar Amount of any Issuing Bank or Tranche 1 Revolving Loans in Alternative Currencies exceeding the Tranche 1 Alternative Currency Revolving Sublimit and (ii) the obligation of the Swingline each Tranche 2 Revolving Lender severally agrees to make Swingline to QVC or zulily revolving credit loans denominated in Dollars or an Alternative Currency (“Tranche 2 Revolving Loans”) in an aggregate principal amount that will not result at the time of such Borrowing in (A) the Dollar Amount of such Lender’s Tranche 2 Outstanding Revolving Credit exceeding such Lender’s Tranche 2 Revolving Commitment or (B) the Dollar Amount of Tranche 2 Revolving Loans pursuant to Section 2.04 of in Alternative Currencies exceeding the Credit AgreementTranche 2 Alternative Currency Revolving Sublimit. During the Revolving Commitment Period (i) QVC may use the Tranche 1 Revolving Commitments by borrowing, prepaying the Tranche 1 Revolving Loans, in whole or in part, and reborrowing, and (ii) QVC and zulily may each use the Tranche 2 Revolving Commitments by borrowing, prepaying the Tranche 2 Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be Eurocurrency Loans or, in the case of Revolving Loans in Dollars, ABR Loans, as in effect immediately prior determined by the applicable Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.03 and 2.05.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination Each Revolving Loan under a Revolving Facility shall be made as part of a Borrowing consisting of Revolving Loans made by the Revolving Lenders thereunder ratably in accordance with their respective Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New under such Revolving Lender” shall become or continue to be, as applicable, a Facility. The failure of any Revolving Lender and a Lender under the Credit Agreement and (ii) the “to make any Revolving Commitment” of each New Loan required to be made by it shall not relieve any other Revolving Lender (of its obligations hereunder; provided that the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving LoansLoans as required.
(c) For all purposes of At the Senior Loan Documents, (i) the Revolving Commitment commencement of each New Interest Period for any Eurocurrency Revolving LenderBorrowing, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement Borrowing shall be satisfied on in an aggregate amount that is an integral multiple of $1,000,000 and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
not less than $5,000,000 (ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to or comparable amounts determined by the Administrative Agent in the case of Alternative Currency). At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; provided that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the Lenders entire unused balance of the Revolving Commitments under the Credit AgreementTranche 1 Revolving Facility or Tranche 2 Revolving Facility, including as applicable. Borrowings of more than one Type and Class may be outstanding at the New same time; provided that there shall not at any time be more than a total of 15 Eurocurrency Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsBorrowings outstanding.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (QVC Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.7.
(b) Subject At any time prior to the terms and conditions set forth herein, on fourth anniversary of the Amendment Effective Closing Date, simultaneously with the termination Borrower and any one or more Lenders (including any New Lender) may agree that such Lender or Lenders shall make or increase the amount of their Revolving Commitments by executing and delivering to the Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase or new Revolving Commitment and the applicable Increased Revolving Commitment Closing Date (which may be no later than the fourth anniversary of the Closing Date). Notwithstanding the foregoing, (i) at no time may the Total Revolving Commitments exceed $500,000,000, (ii) Revolving Commitments may not be made or increased after the occurrence and during the continuation of a Default or Event of Default, including after giving effect to the incremental Revolving Commitments in question, (iii) any increase effected pursuant to this Section 2.1(b) shall be in a minimum amount of at least $25,000,000, (iv) no more than two Increased Revolving Commitment Closing Dates may be selected by the Borrower during the term of this Agreement and (v) prior to the Collateral Release Date, no increase of Revolving Commitments pursuant to clause (aSection 2.1(b) above, (ishall be effective until Section 3(c) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoKGE Collateral Agreement is satisfied. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this Section 2.1(b) unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity (each, a “New Lender”) that, in the case of an institution that is not an Approved Fund or an affiliate of a then-existing Lender, with the consent of the Administrative Agent and each Issuing Lender (which consent, in each case, shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E-1, whereupon such bank, financial institution or other entity shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, each Lender (including any New Lender) that has made or increased its Revolving Commitment shall make a Revolving Loan, the proceeds of which will be used to prepay the Revolving Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 2.12(a) based on the respective Revolving Percentages of the Existing Lenders after giving effect to the increase of Revolving Commitments pursuant to Section 1.2(a2.1(b) above, and the effectiveness of the New on such Increased Revolving Commitments pursuant to Commitment Closing Date. Any remaining proceeds shall be used in accordance with Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:3.16.
(ie) After giving effect to such termination and effectiveness and the borrowing (if any) of The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Termination Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or L/C Obligations then outstanding and (ii) the obligation aggregate principal amount of the Swingline Lender Loans then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to make Swingline time be Eurodollar Loans pursuant to Section 2.04 of or ABR Loans, as determined by the Credit Agreement, in each case as in effect immediately prior Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 3.2 and 4.2.
(b) Subject to the terms and conditions set forth herein, The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes The Borrower may from time to time elect to increase the Revolving Commitments in a minimum amount of $25,000,000 so long as, after giving effect thereto, the Total Revolving Commitments do not exceed $150,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Lender”), or by one or more banks, financial institutions or other entities (each such bank, financial institution or other entity, an “Augmenting Lender”), to increase their existing Revolving Commitments, or extend Revolving Commitments, as the case may be, provided that (i) each Augmenting Lender, shall be subject to the approval of the Senior Loan DocumentsBorrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. Increases and new Revolving Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Lenders and the Administrative Agent shall notify each affected Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) on the Revolving Commitment proposed date of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 6.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and or waived by the Required Lender Amendment, Lenders and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received documents consistent with those delivered on the Closing Date under Section 6.1(h) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in a form acceptable the Revolving Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Administrative Agent shall determine, for the benefit of the other relevant Revolving Lenders make the Revolving Loans Lenders, as being required in order to be made to the Borrower on the Amendment Effective Date.
(vii) After cause, after giving effect to such increase and the borrowing use of such amounts to make payments to such other relevant Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders to equal its Revolving Percentage of such outstanding Revolving Loans, (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if anyapplicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 3.2), (iii) the risk participations in outstanding Letters of Credit shall be automatically adjusted such that each Revolving Lender shall have a risk participation in each outstanding Letter of Credit equal to its Revolving Percentage and (iv) the Borrower shall pay all outstanding accrued interest and fees through the effective date. The deemed payments made pursuant to clause (ii) of Revolving Loans the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 4.10 if the deemed payment occurs other than on the Amendment Effective Date, last day of the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officerrelated Interest Periods.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (aA) Subject to the terms and conditions set forth herein, effective as of herein and in the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Restated Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions Person party hereto whose name is set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender Schedule 2.01 hereto under the Credit Agreement and (ii) the heading “Revolving CommitmentLenders” of (each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan DocumentsPerson, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving LoansLender”) agrees that, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Restatement Effective Date, such Revolving Lender shall have a Revolving Commitment in an amount set forth under the heading “Revolving Commitments” opposite its name on Schedule 2.01 hereto and shall be entitled to all the rights of, and be bound by all of the obligations of, Lenders with Revolving Commitments under the Restated Credit Agreement and the other Loan Documents.
(B) Each party hereto acknowledges and agrees that, on and as of the Restatement Effective Date, Schedule 2.01 hereto sets forth all the Revolving Commitments of all the Revolving Lenders in effect on and as of the Restatement Effective Date, and that no Person whose name does not appear on Schedule 2.01 hereto under the New heading “Revolving Lenders Lenders” shall have received a certificate of a Financial Officer dated the Amendment Effective Date have, or shall be deemed to such effect.
(ii) The Collateral have, on and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel as of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Restatement Effective Date, a Revolving Commitment under the Restated Credit Agreement or be a Revolving Lender thereunder. Without limiting the foregoing, the Revolving Commitment (as defined in substantially the forms delivered in connection with Refinancing Amendment No. 2Existing Credit Agreement) of each Person whose name is set forth on Schedule 2.01 hereto under the heading “Exiting Revolving Lenders” (each such Person, dated an “Exiting Revolving Lender”) shall terminate on and as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Restatement Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are such Person shall cease to be made on a Revolving Lender under the Amendment Effective DateRestated Credit Agreement and, in such capacity, shall cease to have any obligations under, and shall cease to be a party to, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective DateRestated Credit Agreement.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Concentrix Corp)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $100,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased after the “occurrence and during the continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoat least $25,000,000. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Revolving Commitments. (ai) Subject to the terms and conditions set forth hereinhereof, effective each Lender holding a Initial Revolving Commitment severally agrees to make revolving credit loans (together, the “Initial Revolving Loans”) to the Borrowers (on a joint and several basis as between the Borrowers) from time to time in Dollars or, at the request of the Amendment Effective DateParent Borrower, in any Designated Foreign Currency during the Initial Revolving Commitment Period in an aggregate principal amount at any one time outstanding the Dollar Equivalent of which, when added to such Lender’s Revolving Commitment Percentage of the sum of the Dollar Equivalent of the then outstanding Revolving L/C Obligations and the then outstanding Swing Line Loans, does not exceed the amount of such Lender’s Revolving Commitment then in effect (after giving effect to the use of the proceeds thereof on the date of the incurrence thereof to repay any amounts theretofore outstanding pursuant to this Agreement) (it being understood and agreed that the Administrative Agent shall calculate the Dollar Equivalent of the then outstanding Revolving Loans in any Designated Foreign Currency and, to the extent applicable, the then outstanding Revolving L/C Obligations in respect of any Revolving Letters of Credit denominated in any Designated Foreign Currency on the date on which the Parent Borrower has given the Administrative Agent a notice of borrowing with respect to any Revolving Loan for purposes of determining compliance with this Section 2.1(c)). During the Initial Revolving Commitment Period, the Borrowers may use the Initial Revolving Commitments by borrowing, prepaying the Initial Revolving Loans in whole or in part, and reborrowing, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to accordance with the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender hereof; provided that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of Revolving Loans funded on the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender Closing Date pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (aSections 5.17(iii)(a)(1), (biii)(a)(3) and (ciii)(c) (in the case of Section 4.02 5.17(iii)(c), other than to the extent used for working capital) shall not exceed an aggregate amount of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect$50,000,000.
(ii) The Collateral Except as hereinafter provided, Revolving Loans shall, at the option of the Parent Borrower, (w) in the case of Revolving Loans denominated in Dollars, be incurred and Guarantee Requirement shall have been satisfied.
maintained as, and/or converted into, ABR Loans or EurocurrencyTerm SOFR Loans, (iiix) The Administrative Agent shall have received a favorable legal opinion in the case of each Revolving Loans denominated in Canadian Dollars, be incurred and maintained as, and/or converted into, Canadian Prime Rate Loans or BA Equivalent Loans, (y) in the case of (i) SkaddenRevolving Loans denominated in Sterling, Arps, Slate, M▇▇be incurred and maintained as S▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower Loans and (iiz) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of in the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) denominated in any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof Designated Foreign Currency (other than paragraph (b) thereof) shall have been satisfiedCanadian Dollars or Sterling), be incurred and maintained as Eurocurrency Loans.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Hertz Corp)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations and Swing Line Loans then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period, Borrower may use the Revolving Commitments by borrowing, repaying or prepaying the Revolving Loans in whole or in part, and reborrowing, all Revolving Commitments in effect immediately prior to accordance with the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Dateterms and conditions hereof.
(b) Subject Borrower may elect to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of extend the Revolving Commitments pursuant Termination Date from June 18, 2008, to clause (a) aboveOctober 3, (i) each Lender that has executed and delivered to the Administrative Agent2008, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders Borrower shall have received provided Administrative Agent with a certificate written notice of a Financial Officer dated its election to extend the Amendment Effective Revolving Termination Date to such effect.no later than June 1, 2008;
(ii) The Collateral and Guarantee Requirement No Default or Event of Default shall have been satisfied.occurred and be continuing on the date Borrower makes its written election to extend the Revolving Termination Date or on June 18, 2008;
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel Each of the Borrower, representations and warranties made by any Loan Party in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating or pursuant to the Loan Parties, the other Senior Loan Documents, the Senior Collateral Documents shall be true and the transactions contemplated hereby to occur correct in all material respects on the Amendment Effective date Borrower makes its written election to extend the Revolving Termination Date and on June 18, 2008 (other than those representations and warranties that relate to a specific prior date, in which case such representations and warranties shall be true and correct in all material respects as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests of such counsel to deliver such opinions.specific prior date); and
(iv) The Borrower shall have paid to Administrative Agent shall have received such documents and certificates as an advisory fee in accordance with the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative AgentFee Letter.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Getty Images Inc)
Revolving Commitments. (aA) Subject If at any time (1) the Outstanding Amount of Dollar Revolving Obligations shall exceed the Aggregate Dollar Revolving Committed Amount, (2) the Outstanding Amount of Limited Currency Revolving Obligations shall exceed the Aggregate Limited Currency Revolving Committed Amount, (3) the Outstanding Amount of Multicurrency Revolving Obligations shall exceed the Aggregate Multicurrency Revolving Committed Amount, (4) the Outstanding Amount of all Limited Currency Revolving Obligations and Multicurrency Revolving Obligations denominated in an Alternative Currency shall exceed the Alternative Currency Sublimit, (5) the Outstanding Amount of all 2020-1 Incremental Revolving Obligations shall exceed the Aggregate 2020-1 Incremental Revolving Committed Amount, (6) the Outstanding Amount of Swingline Loans shall exceed the Swingline Sublimit and (7) the L/C Obligations shall exceed the L/C Sublimit or the L/C Committed Amount (in each case, other than solely as a result of changes in Spot Rates) immediate prepayment or cash collateralization of amounts owing in respect of outstanding B/As will be made on or in respect of the applicable Revolving Obligations in an amount equal to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreementdifference; provided, however, that that, except under the foregoing shall circumstances described in Section 2.03(a)(ii)(A)(5), 2.03(c), 2.03(d)(i), 2.03(g), 2.06(b)(i)(B), 2.16(d) or 9.02(c), LC Obligations will not affect (i) be Cash Collateralized hereunder until the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Revolving Loans and Swingline Loans pursuant to Section 2.04 of the Credit Agreement, have been paid in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms full. If on any Revaluation Date and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment solely as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” result of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentschanges in Spot Rates, (i) the Outstanding Amount of Limited Currency Revolving Commitment Obligations shall exceed 105% of each New the Aggregate Limited Currency Revolving LenderCommitted Amount, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) the Outstanding Amount of Multicurrency Revolving Obligations shall exceed 105% of the Aggregate Multicurrency Revolving Committed Amount or (iii) the Outstanding Amount of all Letters Limited Currency Revolving Obligations and Multicurrency Revolving Obligations denominated in an Alternative Currency shall exceed 105% of Credit the Alternative Currency Sublimit, immediate prepayment or cash collateralization of amounts owing in respect of outstanding immediately prior B/As will be made on or in respect of the applicable Revolving Obligations in an amount equal to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreementdifference.
(dB) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as If the Administrative Agent or its counsel may reasonably request relating an L/C Issuer notifies the Parent Borrower at any time that the Outstanding Amount of all L/C Obligations (whether or not as a result of a change in Spot Rates) at such time exceeds an amount equal to the good standing 105% of the Borrower and the organization and existence L/C Sublimit then in effect, then, within two (2) Business Days after receipt of each Loan Partysuch notice, the organizational documents Parent Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of each Loan Party, the resolutions such date of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority payment to an amount not to exceed 100% of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) L/C Sublimit. If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to or an L/C Issuer notifies the Administrative Agent requesting Parent Borrower at any time that the New Revolving Lenders make Outstanding Amount of all L/C Obligations denominated in an Alternative Currency at such time exceeds an amount equal to 105% of the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
Alternative Currency L/C Sublimit then in effect, then, within two (vii2) After giving effect to the borrowing (if any) Business Days after receipt of Revolving Loans on the Amendment Effective Datesuch notice, the Borrowing Base Parent Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount on as of such date of payment to an amount not to exceed 100% of the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective DateAlternative Currency L/C Sublimit. The Administrative Agent may, at any time and from time to time after the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated initial deposit of such cash collateral, request that additional cash collateral be provided in order to protect against the Amendment Effective Date and signed by a Financial Officerresults of further exchange rate fluctuations.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of the Amendment Effective Date, all each Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender severally agrees to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
revolving credit loans (b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior in Dollars to the Amendment Effective Date shall continue Borrowers from time to be Letters of Credit issued pursuant to time during the Credit Agreement.
Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added (d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After after giving effect to such termination and effectiveness and the borrowing (if anyuse of proceeds thereof) of Revolving Loans on to the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each sum of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ such ▇▇▇▇▇▇▇▇▇, General Counsel ’s Revolving Percentage of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (Ax) the L/C Obligations then outstanding and (y) the aggregate principal amount of the Revolving Loans then outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (Cii) any Additional Senior Debt outstanding on such ▇▇▇▇▇▇’s Swingline Exposure then outstanding, does not exceed the Amendment Effective Dateamount of such ▇▇▇▇▇▇’s Revolving Commitment. The During the Revolving Commitment Period, the Borrowers may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Revolving Loans may from time to time be Term Benchmark Loans or ABR Loans, as determined by the applicable Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer2.13.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied[Reserved].
(ixc) Each Subsidiary Guarantor Borrower shall have entered into a Reaffirmation Agreement pursuant repay all of its outstanding Revolving Loans on the Maturity Date.
(d) Notwithstanding anything to which the contrary contained herein, each Lender at its option may make any Loan to any Additional Borrower by causing any domestic or foreign branch or Affiliate of such Subsidiary Guarantor reaffirms its obligations under Lender to make such Loan; provided that any exercise of such option shall not affect the Senior Subsidiary Guarantee obligation of such Additional Borrower to repay such Loan in accordance with the terms of this Agreement and shall not cause any Borrower or other Loan Party to incur as of the other Senior Collateral Documents, in form and substance reasonably satisfactory to date of the Administrative Agentexercise of such option any greater liability than it shall then have under Section 2.19 or Section 2.20(a).
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $50,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $15,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$50,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure NEWYORK 9337890 then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $100,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$100,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such ▇▇▇▇▇▇’s L/C Exposure then outstanding, does not exceed the amount of such ▇▇▇▇▇▇’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Term Benchmark Revolving Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $60,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $15,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$60,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such ▇▇▇▇▇▇’s L/C Exposure and Swingline Exposure then outstanding, does not exceed the amount of such ▇▇▇▇▇▇’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Term Benchmark Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.7.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $350,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$350,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.12(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure and Swingline Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.7.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $250,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$250,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.12(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such ▇▇▇▇▇▇’s L/C Exposure and Swingline Exposure then outstanding, does not exceed the amount of such ▇▇▇▇▇▇’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Term Benchmark Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.7.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $450,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$450,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.12(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel commitments from banks and other financial institutions with respect to the Borrower Revolving Facility to be established on the Restatement Closing Date in an aggregate amount equal to $200,000,000 and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇as applicable, General Counsel of a fully executed Lender Addendum with respect to such bank or other financial institution commitment to provide such Revolving Commitments (and pursuant to which, on the BorrowerRestatement Closing Date, in each case addressed to the Administrative Agent and the Lenders such bank or other financial institution shall become a Lender for all purposes under the Credit Agreement, including the New ) or (y) a fully executed Conversion Notice with respect to each Existing Lender with a Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, Commitment electing to convert its Revolving Commitment to a Revolving Commitment under the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment Agreement as amended hereby (and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which on the Restatement Closing Date, all of the outstanding Revolving Loans and Revolving Commitments held by such Subsidiary Guarantor reaffirms its obligations Continuing Lender shall convert into Revolving Loans and Revolving Commitments under the Senior Subsidiary Guarantee Credit Agreement as amended hereby); it being agreed and understood that delivery of a fully executed Conversion Notice by a Continuing Lender shall be deemed to constitute an authorization by such Continuing Lender directing Administrative Agent to execute this Agreement. Each Continuing Lender, having delivered its Lender Consent and Conversion Notice, and each new Lender, having delivered its Lender Addendum, and in each case having funded a Loan on the Restatement Closing Date, acknowledged receipt of, and consented to and approved, each Credit Document and each other Senior Collateral Documentsdocument required to be approved by any Agent, in form and substance reasonably satisfactory to Requisite Lenders or Lenders, as applicable on the Administrative AgentRestatement Closing Date.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Eagle Rock Energy Partners, L.P.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.5 and 2.10.
(b) Subject to the terms and conditions set forth herein, The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, simultaneously with .
(c) The Borrower may from time to time on up to two occasions elect to increase the termination Revolving Commitments in a minimum amount of $25,000,000 (or such lesser amount as the difference between $50,000,000 and the amount of any previous increase of the Revolving Commitments pursuant hereunder) so long as, after giving effect thereto, the Total Revolving Commitments do not exceed $225,000,000. The Borrower may arrange for any such increase to clause be provided by one or more Lenders (a) aboveeach Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Lender”), or by one or more banks, financial institutions or other entities (each such bank, financial institution or other entity, an “Augmenting Lender”), to increase their existing Revolving Commitments, or extend Revolving Commitments, as the case may be, provided that (i) each Lender that has executed Augmenting Lender, shall be subject to the approval of the Borrower and delivered shall be reasonably acceptable to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) (x) in the “Revolving Commitment” case of each New Revolving an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit H hereto, and (y) in the “New case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit I hereto and (iii) no Lender shall have any obligation to participate in any such increase of the Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Increases and new Revolving Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders and/or Augmenting Lenders, as the case may be, and the Administrative Agent shall notify each affected Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of the New Revolving Lenders are several and no New Revolving Lender any Lender), shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentsbecome effective under this paragraph unless, (i) on the Revolving Commitment proposed date of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 5.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and or waived by the Required Lender Amendment, Lenders and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Administrative Agent shall have received documents consistent with those delivered on the Closing Date under Section 5.1(h) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase and, if requested, a legal opinion of counsel to the Borrower and (iii) if Indebtedness is proposed to be incurred under the Revolving Commitments on the proposed date of the effectiveness of such increase, after giving effect to any Indebtedness incurred under the increased Revolving Commitments, on a pro forma basis, the Borrower is in a form acceptable compliance with Section 7.1 as of the last day of the immediately preceding fiscal quarter for which financial statements have been delivered pursuant to Section 6.1. On the effective date of any increase in the Revolving Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Administrative Agent shall determine, for the benefit of the other relevant Revolving Lenders make the Revolving Loans Lenders, as being required in order to be made to the Borrower on the Amendment Effective Date.
(vii) After cause, after giving effect to such increase and the borrowing use of such amounts to make payments to such other relevant Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders to equal its Revolving Percentage of such outstanding Revolving Loans, (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if anyapplicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 2.5), (iii) the risk participations in outstanding Letters of Credit shall be automatically adjusted such that each Revolving Lender shall have a risk participation in each outstanding Letter of Credit equal to its Revolving Percentage and (iv) the Borrower shall pay all outstanding accrued interest and fees through the effective date. The deemed payments made pursuant to clause (ii) of Revolving Loans the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.18 if the deemed payment occurs other than on the Amendment Effective Date, last day of the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officerrelated Interest Periods.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (aA) Subject If at any time (1) the Outstanding Amount of Dollar Revolving Obligations shall exceed the Aggregate Dollar Revolving Committed Amount, (2) the Outstanding Amount of Limited Currency Revolving Obligations shall exceed the Aggregate Limited Currency Revolving Committed Amount, (3) the Outstanding Amount of Multicurrency Revolving Obligations shall exceed the Aggregate Multicurrency Revolving Committed Amount, (4) the Outstanding Amount of all Limited Currency Revolving Obligations and Multicurrency Revolving Obligations denominated in an Alternative Currency shall exceed the Alternative Currency Sublimit, (5) the Outstanding Amount of Swingline Loans shall exceed the Swingline Sublimit and (6) the L/C Obligations shall exceed the L/C Sublimit or the L/C Committed Amount (in each case, other than solely as a result of changes in Spot Rates) immediate prepayment or cash collateralization of amounts owing in respect of outstanding B/As will be made on or in respect of the applicable Revolving Obligations in an amount equal to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreementdifference; provided, however, that that, except under the foregoing shall circumstances described in Section 2.03(a)(ii)(FA)(5), 2.03(c), 2.03(d)(i), 2.03(g), 2.06(b)(i)(B), 2.16(d) or 9.02(c), L/C Obligations will not affect (i) be Cash Collateralized hereunder until the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Revolving Loans and Swingline Loans pursuant to Section 2.04 of the Credit Agreement, have been paid in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms full. If on any Revaluation Date and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment solely as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” result of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentschanges in Spot Rates, (i) the Outstanding Amount of Limited Currency Revolving Commitment Obligations shall exceed 105% of each New the Aggregate Limited Currency Revolving LenderCommitted Amount, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) the Outstanding Amount of Multicurrency Revolving Obligations shall exceed 105% of the Aggregate Multicurrency Revolving Committed Amount or (iii) the Outstanding Amount of all Letters Limited Currency Revolving Obligations and Multicurrency Revolving Obligations denominated in an Alternative Currency shall exceed 105% of Credit the Alternative Currency Sublimit, immediate prepayment or cash collateralization of amounts owing in respect of outstanding immediately prior B/As will be made on or in respect of the applicable Revolving Obligations in an amount equal to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreementdifference.
(dB) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as If the Administrative Agent or its counsel may reasonably request relating an L/C Issuer notifies the Parent Borrower at any time that the Outstanding Amount of all L/C Obligations (whether or not as a result of a change in Spot Rates) at such time exceeds an amount equal to the good standing 105% of the Borrower and the organization and existence L/C Sublimit then in effect, then, within two (2) Business Days after receipt of each Loan Partysuch notice, the organizational documents Parent Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of each Loan Party, the resolutions such date of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority payment to an amount not to exceed 100% of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) L/C Sublimit. If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to or an L/C Issuer notifies the Administrative Agent requesting Parent Borrower at any time that the New Revolving Lenders make Outstanding Amount of all L/C Obligations denominated in an Alternative Currency at such time exceeds an amount equal to 105% of the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
Alternative Currency L/C Sublimit then in effect, then, within two (vii2) After giving effect to the borrowing (if any) Business Days after receipt of Revolving Loans on the Amendment Effective Datesuch notice, the Borrowing Base Parent Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount on as of such date of payment to an amount not to exceed 100% of the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective DateAlternative Currency L/C Sublimit. The Administrative Agent may, at any time and from time to time after the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated initial deposit of such cash collateral, request that additional cash collateral be provided in order to protect against the Amendment Effective Date and signed by a Financial Officerresults of further exchange rate fluctuations.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of each Lender agrees to make Tranche A Revolving Loans to Smith from time to time during the Amendment Effective Date, all Revolving Commitments Availability Period in effect immediately prior a▇ ▇▇▇regate principal amount that will not result in such Lender's Tranche A Revolving Exposure exceeding such Lender's Tranche A Revolving Commitment. Within the foregoing limits and subject to the Amendment Effective Date (the “Existing terms and conditions set forth herein, Smith may borrow, prepay and reborrow Tranche A Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective DateLoans.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of each Lender agrees to make Tranche B Revolving Loans to M-I LLC from time to time during the Revolving Commitments pursuant to clause (a) above, (i) each Lender Availability Period in an aggregate principal amount that has executed will not result in such Lender's Tranche B Revolving Exposure exceeding such Lender's Tranche B Revolving Commitment. Within the foregoing limits and delivered subject to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender terms and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment conditions set forth with respect to such New Revolving Lender on Annex herein, M-I hereto. The New Revolving Commitments of the New Revolving Lenders are several LLC may borrow, prepay and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make reborrow Tranche B Revolving Loans.
(c) For all purposes of the Senior Loan DocumentsThe Borrowers, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under agree pursuant to Chapter 346 ("Chapter 346") of the Credit Texas Finance Code, that Chapter 346 (which relates to open-end line of credit revolving loan accounts) shall not apply to this Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent Notes or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on Loan and that neither the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Notes nor any Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date Loan shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) governed by Chapter 346 or subject to its provisions in any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officermanner whatsoever.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject to At any time, the terms Borrower and conditions set forth hereinany one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, on obtain or increase the Amendment Effective Date, simultaneously with the termination amount of the their Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed by executing and delivered delivering to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Agent an Increased Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be Commitment Activation Notice specifying the amount of such increase and the commitment set forth with respect to such New applicable Increased Revolving Lender on Annex I heretoCommitment Closing Date. The New Revolving Commitments of Notwithstanding the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentsforegoing, (i) the aggregate amount of incremental Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender Commitments obtained pursuant to such Revolving Commitmentsthis Section 2.1(b) shall not exceed $50,000,000, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters incremental Revolving Commitments may not be made, obtained or increased during the continuation of Credit outstanding immediately prior a Default or Event of Default, including after giving pro forma effect to the Amendment Effective Date shall continue to be Letters of Credit issued incremental Revolving Commitments in question and (iii) the increase effected pursuant to this paragraph shall be in a minimum amount of at least $15,000,000 (or, if less, the Credit remaining unutilized portion of such $50,000,000). No Lender shall have any obligation to participate in any increase described in this paragraph unless it agrees to do so in its sole discretion. NEWYORK 9337361
(c) Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes and to the same extent as if originally a party hereto and shall be bound by and entitled to the benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each US Dollar Revolving Lender severally agrees to make revolving credit loans to the Parent Borrower and to the Subsidiary Borrower in US Dollars ("US Dollar Revolving Loans") from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such US Dollar Lender's Revolving Percentage of the Amendment Effective Datesum of the L/C Obligations then outstanding, all does not exceed the amount of such Lender's US Dollar Revolving Commitments in effect immediately prior to the Amendment Effective Date Commitment (the “Existing "Revolving Commitments”) will Loans"). Notwithstanding the above, in no event shall any Revolving Loan be terminated pursuant made or Letter of Credit be issued, if, after giving effect to Section 2.08(b) such making or issuance and the use of proceeds thereof as directed by the Parent Borrower or the Subsidiary Borrower, as the case may be, the Total Revolving Extensions of Credit Agreement; provided, however, that would exceed the foregoing shall not affect lesser of (i) the LC Commitment of any Issuing Bank Total Revolving Commitments or (ii) the obligation Borrowing Base as of the Swingline Lender date of the most recent Borrowing Base Certificate furnished to make Swingline Loans the Administrative Agent pursuant to Section 2.04 of 5.1(m) or Section 6.2(f) hereof. During the Credit AgreementRevolving Commitment Period, the Borrowers may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in each whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to time be Eurocurrency Loans or Alternate Base Rate Loans, as determined by the Parent Borrower or the Subsidiary Borrower, as the case as in effect immediately prior may be, and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.5 and 2.10.
(b) Subject to the terms and conditions set forth herein, The Borrowers shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, simultaneously with . To the termination extent the Revolving Termination Date extends beyond the maturity date of any subordinated debt of the Parent Borrower existing on the date hereof, such Revolving Commitments pursuant Termination Date shall be adjusted to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or be 90 days prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” maturity date of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loanssubordinated debt.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant Up to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the an aggregate principal amount of Loans outstanding on $40,000,000 of the Amendment Effective Date, (B) Revolving Facility will be available for borrowings by the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial OfficerSubsidiary Borrower.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of from time to time during the Amendment Effective DateRevolving Commitment Period, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) each Dollar Revolving Lender severally agrees to make to the LC Borrower revolving credit loans denominated in Dollars ("DOLLAR REVOLVING LOANS") in an aggregate principal amount that will not result in such Lender's Revolving Loans under the Dollar Revolving Commitments exceeding such Lender's Dollar Revolving Commitment of any Issuing Bank or and (ii) the obligation of the Swingline each Multicurrency Revolving Lender severally agrees to make Swingline to the Borrower revolving credit loans denominated in Dollars or an Alternative Currency ("MULTICURRENCY REVOLVING Loans"; together with the Dollar Revolving Loans, the "REVOLVING LOANS") in an aggregate principal amount that will not result at the time of such Borrowing in (A) the Dollar Amount of such Lender's Revolving Loans pursuant under the Multicurrency Revolving Commitments exceeding such Lender's Multicurrency Revolving Commitment or (B) the Dollar Amount of Multicurrency Revolving Loans in Alternative Currencies exceeding the Alternative Currency Revolving Sublimit. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to Section 2.04 of the Credit Agreementtime be Eurocurrency Loans or, in each the case of Dollar Revolving Loans or Multicurrency Revolving Loans in Dollars, ABR Loans, as in effect immediately prior determined by the Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.04 and 2.06.
(b) Subject to Each Revolving Loan under the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Dollar Revolving Commitments pursuant to clause (a) aboveor Multicurrency Revolving Commitments, (i) each Lender that has executed and delivered to as the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to case may be, shall be made as applicablepart of a Borrowing consisting of Revolving Loans made by the Lenders thereunder ratably in accordance with their respective Dollar Revolving Commitments or Multicurrency Revolving Commitments, a as the case may be. The failure of any Revolving Lender and a Lender under the Credit Agreement and (ii) the “to make any Revolving Commitment” of each New Loan required to be made by it shall not relieve any other Revolving Lender (of its obligations hereunder; PROVIDED that the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s 's failure to make Revolving LoansLoans as required.
(c) For all purposes At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000 (or comparable amounts determined by the Administrative Agent in the case of Alternative Currency). At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; PROVIDED that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Senior Loan Documents, (i) Total Dollar Revolving Commitments or the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Total Multicurrency Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent case may reasonably request, be. Borrowings of more than one Type and otherwise reasonably satisfactory to Class may be outstanding at the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionssame time; PROVIDED that there shall not at any time be more than a total of 12 Eurocurrency Revolving Borrowings outstanding.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $100,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased after the “occurrence and during the continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoat least $25,000,000. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New LenderSupplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Revolving Commitments. (aA) Subject If at any time (1) the Outstanding Amount of Dollar Revolving Obligations shall exceed the Aggregate Dollar Revolving Committed Amount, (2) the Outstanding Amount of Limited Currency Revolving Obligations shall exceed the Aggregate Limited Currency Revolving Committed Amount, (3) the Outstanding Amount of Multicurrency Revolving Obligations shall exceed the Aggregate Multicurrency Revolving Committed Amount, (4) the Outstanding Amount of all Limited Currency Revolving Obligations and Multicurrency Revolving Obligations denominated in an Alternative Currency shall exceed the Alternative Currency Sublimit, (5) the Outstanding Amount of all 2020-1 Incremental Revolving Obligations shall exceed the Aggregate 2020-1 Incremental Revolving Committed Amount, (6) the Outstanding Amount of Swingline Loans shall exceed the Swingline Sublimit and (7) the L/C Obligations shall exceed the L/C Sublimit or the L/C Committed Amount (in each case, other than solely as a result of changes in Spot Rates) immediate prepayment or cash collateralization of amounts owing in respect of outstanding B/As will be made on or in respect of the applicable Revolving Obligations in an amount equal to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreementdifference; provided, however, that that, except under the foregoing shall circumstances described in Section 2.03(a)(ii)(A)(5), 2.03(c), 2.03(d)(i), 2.03(g), 2.06(b)(i)(B), 2.16(d) or 9.02(c), L/C Obligations will not affect (i) be Cash Collateralized hereunder until the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Revolving Loans and Swingline Loans pursuant to Section 2.04 of the Credit Agreement, have been paid in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms full. If on any Revaluation Date and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment solely as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” result of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentschanges in Spot Rates, (i) the Outstanding Amount of Limited Currency Revolving Commitment Obligations shall exceed 105% of each New the Aggregate Limited Currency Revolving LenderCommitted Amount, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) the Outstanding Amount of Multicurrency Revolving Obligations shall exceed 105% of the Aggregate Multicurrency Revolving Committed Amount or (iii) the Outstanding Amount of all Letters Limited Currency Revolving Obligations and Multicurrency Revolving Obligations denominated in an Alternative Currency shall exceed 105% of Credit the Alternative Currency Sublimit, immediate prepayment or cash collateralization of amounts owing in respect of outstanding immediately prior B/As will be made on or in respect of the applicable Revolving Obligations in an amount equal to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreementdifference.
(dB) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as If the Administrative Agent or its counsel may reasonably request relating an L/C Issuer notifies the Parent Borrower at any time that the Outstanding Amount of all L/C Obligations (whether or not as a result of a change in Spot Rates) at such time exceeds an amount equal to the good standing 105% of the Borrower and the organization and existence L/C Sublimit then in effect, then, within two (2) Business Days after receipt of each Loan Partysuch notice, the organizational documents Parent Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount as of each Loan Party, the resolutions such date of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority payment to an amount not to exceed 100% of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) L/C Sublimit. If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to or an L/C Issuer notifies the Administrative Agent requesting Parent Borrower at any time that the New Revolving Lenders make Outstanding Amount of all L/C Obligations denominated in an Alternative Currency at such time exceeds an amount equal to 105% of the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
Alternative Currency L/C Sublimit then in effect, then, within two (vii2) After giving effect to the borrowing (if any) Business Days after receipt of Revolving Loans on the Amendment Effective Datesuch notice, the Borrowing Base Parent Borrower shall Cash Collateralize the L/C Obligations in an aggregate amount sufficient to reduce such Outstanding Amount on as of such date of payment to an amount not to exceed 100% of the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective DateAlternative Currency L/C Sublimit. The Administrative Agent may, at any time and from time to time after the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated initial deposit of such cash collateral, request that additional cash collateral be provided in order to protect against the Amendment Effective Date and signed by a Financial Officerresults of further exchange rate fluctuations.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such ▇▇▇▇▇▇’s L/C Exposure then outstanding, does not exceed the amount of such ▇▇▇▇▇▇’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Term Benchmark Revolving Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $150,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$150,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject By written notice sent to the terms Administrative Agent (which the Administrative Agent shall promptly distribute to the Lenders), the Borrower may at any time and conditions set forth herein, effective as from time to time request an increase of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) aggregate amount of the Credit AgreementCommitments by an aggregate amount equal to any integral multiple of $5,000,000; provided, however, provided that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or no Default shall have occurred and be continuing; (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the aggregate amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall not have been satisfied.
reduced, nor shall the Borrower have given notice of any such reduction under Section 2.09; (iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal total amount of Loans outstanding on the Amendment Effective Dateall Commitments after giving effect to any such increase, plus (B) the LC Exposure on the Amendment Effective Date initial principal amount of any Incremental Term Loan, shall not exceed $1,050,000,000; and (Civ) any Additional Senior Debt outstanding on the Amendment Effective DateCommitment of a Lender shall not be increased without the consent of such Lender. The If one or more of the Lenders is not increasing its Commitment, then, with notice to the Administrative Agent and the Borrowing Base other Lenders, another one or more financial institutions, each as approved by the Borrower and the Administrative Agent (a “New Lender”), may commit to provide an amount equal to the aggregate amount of the requested increase that will not be provided by the existing Lenders (the “Increase Amount”); provided, that the Commitment of each New Lender shall be at least $5,000,000. Upon receipt of notice from the Administrative Agent to the Lenders and the Borrower that the Lenders, or sufficient Lenders and New Lenders, have agreed to commit to an aggregate amount equal to the Increase Amount, then: provided that no Default exists at such time or after giving effect to the requested increase, the Borrower, the Administrative Agent and the Lenders willing to increase their respective Commitments and the New Lenders (if any) shall execute and deliver a supplement in the form attached hereto as Exhibit C (the “Increased Commitment Supplement”). If all existing Lenders shall not have provided their pro rata portion of the requested Increase Amount, the Revolving Loans will not be held pro rata by the Lenders in accordance with the Applicable Percentages determined hereunder. To remedy the foregoing, on the date of the effectiveness of the Increased Commitment Supplement, the Lenders shall make advances among themselves so that after giving effect thereto the Revolving Loans will be held by the Lenders, pro rata in accordance with the Applicable Percentages hereunder. The advances so made by each Lender whose Applicable Percentage has increased as a result of the changes to the Commitments shall be deemed to be a purchase of a corresponding amount of the Revolving Loans of the Lender or Lenders whose Applicable Percentages have decreased. The advances made under this Section shall be Loans of the same Type as those previously held by the Lender or Lenders whose Applicable Percentages have decreased unless or until the Borrower shall have received a completed Borrowing Base Certificate dated selected an alternative interest rate to apply thereto under the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness terms of this Amendment set forth in Agreement. All advances made under this Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to be made through the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans ("Revolving Loans") to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender's Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the RC LC Commitment of any Issuing Bank or Obligations then outstanding and (ii) the obligation aggregate principal amount of the Swingline Lender Loans then outstanding, does not exceed the amount of such Lender's Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to make Swingline time be Eurodollar Loans pursuant to Section 2.04 of or ABR Loans, as determined by the Credit Agreement, in each case as in effect immediately prior Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.5 and 2.12.
(b) Subject to the terms The Borrower and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the any one or more Revolving Commitments pursuant to clause Lenders (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “including New Revolving Lender” Lenders) may agree that each such Lender shall become obtain a Revolving Commitment or continue to beincrease the amount of its existing Revolving Commitment, as applicable, a in each case by executing and delivering to the Administrative Agent an Increased Revolving Lender and a Lender under Facility Activation Notice specifying (i) the Credit Agreement amount of such increase and (ii) the “Increased Revolving Commitment” Facility Closing Date. Notwithstanding the foregoing, without the consent of each New Revolving Lender the Required Lenders, (i) the “New Revolving Commitments”) will be the aggregate amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New incremental Revolving Commitments obtained pursuant to this paragraph shall not exceed $40,000,000 and (ii) no more than one Increased Revolving Facility Closing Date may be selected by the Borrower during the term of the New Revolving Lenders are several and no New Revolving this Agreement. No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For all purposes Any additional bank, financial institution or other entity which, with the consent of the Senior Loan DocumentsBorrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a "Revolving Lender" under this Agreement in connection with any transaction described in Section 2.2(b) shall execute a New Revolving Lender Supplement (i) each, a "New Revolving Lender Supplement"), substantially in the Revolving Commitment form of each Exhibit I-1, whereupon such bank, financial institution or other entity (a "New Revolving Lender, and the Loans made by each New ") shall become a Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” for all purposes and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination For the purpose of providing that the Existing respective amounts of Revolving Commitments pursuant Loans (and Eurodollar Tranches in respect thereof) held by the Revolving Lenders are held pro rata according to Section 1.2(a) abovetheir respective Revolving Commitments, and unless otherwise agreed by the effectiveness Administrative Agent, on the Increased Revolving Facility Closing Date, the Borrower shall borrow a Revolving Loan from each relevant Lender in an amount determined by reference to the amount of the New Revolving Commitments pursuant to Section 1.2(b) aboveeach Type of Loan (and, in the case of Eurodollar Loans, of each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
Eurodollar Tranche) which would then have been outstanding from such Lender if (i) After giving effect to each such termination and effectiveness and the borrowing (if any) of Revolving Loans Type or Eurodollar Tranche had been borrowed or effected on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Increased Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Facility Closing Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel the aggregate amount of each such Type or Eurodollar Tranche requested to be so borrowed or effected had been proportionately increased. The Eurodollar Base Rate applicable to any Eurodollar Loan borrowed pursuant to the preceding sentence shall equal the Eurodollar Base Rate then applicable to the Eurodollar Loans of the Borrowerother Lenders in the same Eurodollar Tranche (or, in each case addressed to until the Administrative Agent and expiration of the Lenders under the Credit Agreementthen-current Interest Period, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date rate as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of be agreed upon between the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agentrelevant Lender).
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $100,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$100,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their NEWYORK 9337878 Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinThe Company may, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered upon notice to the Administrative Agent, on or prior to (i) terminate the Amendment Effective DateAggregate Revolving A Commitments and/or the Aggregate Revolving B Commitments, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) from time to time permanently reduce the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters Letter of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective DateSublimit, the conditions set forth in paragraphs (a)Swing Line Sublimit and/or the Foreign Borrower Sublimit, (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent from time to time permanently reduce the Aggregate Revolving A Commitments to an amount not less than the Outstanding Amount of Revolving A Loans, Swing Line Loans and L/C Obligations or (iv) from time to time permanently reduce the Aggregate Revolving B Commitments to an amount not less than the Outstanding Amount of Revolving B Loans; provided that (A) any such notice shall have be received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ CHAR1\▇▇▇▇▇▇▇▇▇
(1) the Aggregate Revolving A Commitments and/or Aggregate Revolving B Commitments, General Counsel as applicable, if, after giving effect thereto and to any concurrent prepayments hereunder, the Total Revolving A Outstandings and/or Total Revolving B Outstandings, as applicable, would exceed the Aggregate Revolving A Commitments and/or Aggregate Revolving B Commitments, as applicable, (2) the Letter of Credit Sublimit if, after giving effect thereto, the BorrowerOutstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit, (3) the Swing Line Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Swing Line Loans would exceed the Swing Line Sublimit or (4) the Foreign Borrower Sublimit if, after giving effect thereto and to any concurrent prepayments hereunder, the Outstanding Amount of Loans and L/C Obligations made to Foreign Borrowers would exceed the Foreign Borrower Sublimit and (D) any such notice may state that such notice is conditioned upon the effectiveness of other transactions, in each which case addressed such notice of termination or reduction may be revoked by the applicable Borrower (by notice to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, on or prior to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering specified effective date) if such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been condition is not satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (EnerSys)
Revolving Commitments. (a) Subject By written notice sent to the terms Administrative Agent (which the Administrative Agent shall promptly distribute to the Lenders), the Borrower may at any time and conditions set forth herein, effective as from time to time request an increase of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) aggregate amount of the Credit AgreementCommitments by an aggregate amount equal to any integral multiple of $5,000,000; provided, however, provided that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or no Default shall have occurred and be continuing; (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the aggregate amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall not have been satisfied.
reduced, nor shall the Borrower have given notice of any such reduction under Section 2.09; (iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal total amount of Loans outstanding on the Amendment Effective Dateall Commitments after giving effect to any such increase, plus (B) the LC Exposure on the Amendment Effective Date initial principal amount of any Incremental Term Loan, shall not exceed $1,000,000,000; and (Civ) any Additional Senior Debt outstanding on the Amendment Effective DateCommitment of a Lender shall not be increased without the consent of such Lender. The If one or more of the Lenders is not increasing its Commitment, then, with notice to the Administrative Agent and the Borrowing Base other Lenders, another one or more financial institutions, each as approved by the Borrower and the Administrative Agent (a “New Lender”), may commit to provide an amount equal to the aggregate amount of the requested increase that will not be provided by the existing Lenders (the “Increase Amount”); provided, that the Commitment of each New Lender shall be at least $5,000,000. Upon receipt of notice from the Administrative Agent to the Lenders and the Borrower that the Lenders, or sufficient Lenders and New Lenders, have agreed to commit to an aggregate amount equal to the Increase Amount, then: provided that no Default exists at such time or after giving effect to the requested increase, the Borrower, the Administrative Agent and the Lenders willing to increase their respective Commitments and the New Lenders (if any) shall execute and deliver a supplement in the form attached hereto as Exhibit C (the “Increased Commitment Supplement”). If all existing Lenders shall not have provided their pro rata portion of the requested Increase Amount, the Revolving Loans will not be held pro rata by the Lenders in accordance with the Applicable Percentages determined hereunder. To remedy the foregoing, on the date of the effectiveness of the Increased Commitment Supplement, the Lenders shall make advances among themselves so that after giving effect thereto the Revolving Loans will be held by the Lenders, pro rata in accordance with the Applicable Percentages hereunder. The advances so made by each Lender whose Applicable Percentage has increased as a result of the changes to the Commitments shall be deemed to be a purchase of a corresponding amount of the Revolving Loans of the Lender or Lenders whose Applicable Percentages have decreased. The advances made under this Section shall be Loans of the same Type as those previously held by the Lender or Lenders whose Applicable Percentages have decreased unless or until the Borrower shall have received a completed Borrowing Base Certificate dated selected an alternative interest rate to apply thereto under the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness terms of this Amendment set forth in Agreement. All advances made under this Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to be made through the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (ai) Subject to Each Lender under the 3-Year2024 Revolving Facility severally, and not jointly with the other Lenders under the 3-Year2024 Revolving Facility, agrees, upon the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior subject to the Amendment Effective Date conditions herein set forth, to make revolving credit loans denominated in Dollars (each a “3-Year2024 Revolving Loan” and collectively, the “Existing 3-Year2024 Revolving Loans”) to the Borrower at any time and from time to time during the Revolving Availability Period with respect to the 3-Year2024 Revolving Facility in an aggregate principal amount not to exceed, when added to such Lender’s LC Exposure under the 3-Year2024 Revolving Facility, the 3-Year2024 Revolving Commitment of such Lender, which 3-Year2024 Revolving Loans may be repaid and reborrowed in accordance with the provisions of this Agreement. At no time shall the Total 3-Year2024 Revolving Extensions of Credit exceed the Total 3-Year2024 Revolving Commitment.
(ii) Each Lender under the 5-Year2023 Revolving Facility severally, and not jointly with the other Lenders under the 5-Year2023 Revolving Facility, agrees, upon the terms and subject to the conditions herein set forth, to make revolving credit loans denominated in Dollars (each a “5-Year2023 Revolving Loan” and collectively, the “5-Year2023 Revolving Loans”) to the Borrower at any time and from time to time during the Revolving Availability Period with respect to the 5-Year2023 Revolving Facility in an aggregate principal amount not to exceed, when added to such Lender’s LC Exposure under the 5-Year2023 Revolving Facility, the 5-Year2023 Revolving Commitment of such Lender, which 5-Year2023 Revolving Loans may be repaid and reborrowed in accordance with the provisions of this Agreement. At no time shall the Total 5-Year2023 Revolving Extensions of Credit exceed the Total 5-Year2023 Revolving Commitment.
(iii) Each Borrowing of a Revolving Loan under the applicable Revolving Facility shall be made from the applicable Lenders pro rata in accordance with their respective Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment failure of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the any Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender Loan under the Credit Agreement and (ii) applicable Revolving Facility shall not in itself relieve the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving other Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to under such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters Facility of Credit outstanding immediately prior their obligations to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreementlend.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $50,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased after the “occurrence and during the continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoat least $25,000,000. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure then outstanding, does not AMERICAS 91292599 exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $100,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$100,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $200,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased after the “occurrence and during the continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoat least $25,000,000. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all The aggregate Revolving Commitments in effect immediately prior are hereby increased by $23,000,000.00 to the Amendment Effective Date $523,000,000.00. JPMorgan hereby agrees to increase its Revolving Commitment by $7,666,666.67, KeyBank National Association hereby agrees to increase its Revolving Commitment by $7,666,666.66, and Bank of America, N.A. hereby agrees to increase its Revolving Commitment by $7,666,666.66 (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; providedcollectively, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be to the amount of the commitment set forth with respect opposite its name on Schedule 2.01A attached to such New Revolving Lender on Annex I heretothis Amendment. The Such New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such constitute “Extended Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on . On the Amendment Effective Date, are subject to the satisfaction (a) each of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date assign to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skaddenthe Increasing Lenders, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel each of the Borrower, in Increasing Lenders shall purchase from each case addressed to of the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated at the Amendment Effective Dateprincipal amount thereof (together with accrued interest), such interests in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur Loans outstanding on the Amendment Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by the Administrative Agent may reasonably requestRevolving Lenders ratably in accordance with their Revolving Commitments set forth on Schedule 2.01A attached to this Amendment, (b) each Revolving Lender shall automatically and without further act be deemed to have assigned to each of the Increasing Lenders, and otherwise reasonably satisfactory each such Increasing Lender will automatically and without further act be deemed to the Administrative Agent. The Borrower hereby requests have assumed, a portion of such counsel Revolving Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to deliver each such opinions.
(iv) The Administrative Agent shall have received such documents deemed assignment and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing assumption of the Borrower and the organization and existence of each Loan Partyparticipations, the organizational documents aggregate outstanding (i) participations in Letters of each Loan Party, Credit and (ii) participations in Swingline Loans will be held by the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all Revolving Lenders ratably in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties accordance with their Revolving Commitments set forth in Section 2.1 hereof are true on Schedule 2.01A attached to this Amendment, (c) each New Revolving Commitment shall be deemed for all purposes a Revolving Commitment and correct as of the Amendment Effective Date.
an Extended Revolving Commitment and each loan made thereunder shall be deemed, for all purposes, a Revolving Loan and an Extended Loan and (vid) If any each Increasing Lender shall become a Revolving Loans are Lender with respect to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective DateCommitment and all matters relating thereto.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Revolving Credit Agreement (Xenia Hotels & Resorts, Inc.)
Revolving Commitments. (ai) Subject to Each Lender under the 3-Year Revolving Facility severally, and not jointly with the other Lenders under the 3-Year Revolving Facility, agrees, upon the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior subject to the Amendment Effective Date conditions herein set forth, to make revolving credit loans denominated in Dollars (each a “3-Year Revolving Loan” and collectively, the “Existing 3-Year Revolving Loans”) to the Borrower at any time and from time to time during the Revolving Availability Period with respect to the 3-Year Revolving Facility in an aggregate principal amount not to exceed, when added to such Lender’s LC Exposure under the 3-Year Revolving Facility, the 3-Year Revolving Commitment of such Lender, which 3-Year Revolving Loans may be repaid and reborrowed in accordance with the provisions of this Agreement. At no time shall the Total 3-Year Revolving Extensions of Credit exceed the Total 3-Year Revolving Commitment.
(ii) Each Lender under the 5-Year Revolving Facility severally, and not jointly with the other Lenders under the 5-Year Revolving Facility, agrees, upon the terms and subject to the conditions herein set forth, to make revolving credit loans denominated in Dollars (each a “5-Year Revolving Loan” and collectively, the “5-Year Revolving Loans”) to the Borrower at any time and from time to time during the Revolving Availability Period with respect to the 5-Year Revolving Facility in an aggregate principal amount not to exceed, when added to such Lender’s LC Exposure under the 5-Year Revolving Facility, the 5-Year Revolving Commitment of such Lender, which 5-Year Revolving Loans may be repaid and reborrowed in accordance with the provisions of this Agreement. At no time shall the Total 5-Year Revolving Extensions of Credit exceed the Total 5-Year Revolving Commitment.
(iii) Each Borrowing of a Revolving Loan under the applicable Revolving Facility shall be made from the applicable Lenders pro rata in accordance with their respective Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment failure of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the any Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender Loan under the Credit Agreement and (ii) applicable Revolving Facility shall not in itself relieve the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving other Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to under such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters Facility of Credit outstanding immediately prior their obligations to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreementlend.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time prior to the terms and conditions set forth herein, on fourth anniversary of the Amendment Effective Closing Date, simultaneously with the termination Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and the applicable Increased Revolving Commitment Closing Date (which may be no later than the fourth anniversary of the Revolving Commitments pursuant to clause (a) aboveClosing Date). Notwithstanding the foregoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $50,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased after the “occurrence and during the continuation of a Default or Event of Default, including after giving effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question, (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 and (iv) no more than one Increased Revolving Commitment Closing Date may be selected by the commitment set forth with respect to such New Revolving Lender on Annex I heretoBorrower during the term of this Agreement. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit E-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay the Revolving Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 2.11(a) based on the respective Revolving Percentages of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Xcel Energy Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior each Lender severally agrees to make Loans to the Amendment Effective Date (Borrowers from time to time during the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; providedCommitment Period in an aggregate principal amount at any one time outstanding, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect when added to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇’s Commitment Percentage of the L/C Obligations then outstanding, which does not exceed the amount of such ▇▇▇▇▇▇’s Commitment. During the Commitment Period, General Counsel the Borrowers may use the Commitments by borrowing, prepaying the Loans in whole or in part and reborrowing, all in accordance with the terms and conditions hereof. The Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrowers and notified to the Administrative Agent in accordance with Sections 2.2 and 2.6.
(a) From time to time during the Commitment Period, upon written notice by the Borrower Representative to the Administrative Agent, with the prior written consents of the BorrowerAdministrative Agent (which consent shall be in its sole discretion and shall not be unreasonably withheld or delayed) and the then Issuing Lenders (which consents shall not be unreasonably withheld or delayed), (i) any one or more existing Lenders may agree that such existing Lender or Lenders shall increase the amount of their Commitment or Commitments by executing and delivering to the Borrower Representative and the Administrative Agent a Commitment Increase Supplement or Commitment Increase Supplements, as the case may be, and/or (ii) any one or more New Lenders may from time to time during the Commitment Period agree that such New Lender or New Lenders shall establish a new Commitment or Commitments by executing and delivering to the Borrower Representative and the Administrative Agent a New Lender Supplement or New Lender Supplements, as the case may be, provided that each New Lender shall (A) be a NAIC Approved Bank or (B) shall have in effect a Limited Fronting Lender Agreement with a Lender which is a NAIC Approved Bank. From and after the effective date specified in each New Lender Supplement, the New Lender thereunder shall become a Lender with a Commitment in the amount set forth in such New Lender Supplement and shall have the rights and obligations of a Lender under this Agreement for all purposes and to the same extent as if originally a party hereto. Each New Lender shall deliver to the Administrative Agent an administrative questionnaire. Notwithstanding anything contained in this paragraph to the contrary, without the consent of (x) the Required Lenders, the aggregate amount of incremental Commitments established or increased after the Closing Date pursuant to this paragraph shall not exceed $100,000,000 and (y) the Administrative Agent, each increase in the Total Commitments effected pursuant to this paragraph shall be in a minimum aggregate amount of $10,000,000. No existing Lender shall have any obligation under this Agreement to enter into a Commitment Increase Supplement.
(b) Upon its receipt of (i) a duly executed Commitment Increase Supplement or a New Lender Supplement, (ii) a certificate of each Borrower attaching the resolutions of the board of directors of such Borrower authorizing the increase in the Commitments in an amount equal to or greater than the amount of such increase in the Commitments effected thereby (except to the extent resolutions authorizing the increased amount have previously been delivered by such Borrower), and (iii) each written consent thereto required by paragraph (b) of this Section, the Administrative Agent shall accept such Commitment Increase or New Lender Supplement, as the case addressed may be, and record the information contained therein in the Register.
(c) Unless otherwise agreed to by the Administrative Agent and the Lenders under Company (which agreement may include (i) a phase-in of the Credit Agreementapplicable increase and/or (ii) if agreed to by each Lender, including Interest Periods having terms other than as set forth herein ), on each date upon which the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009Total Commitments shall be increased pursuant to this Section, to the Credit Agreementextent necessary to rebalance the outstanding Loans pro rata among the Lenders (including any New Lenders) pursuant to their modified Aggregate Exposure Percentages, modifiedthe Borrowers (i) shall prepay outstanding Loans, howeverif any, which prepayment shall be accompanied by payment of all accrued interest on the amount prepaid and any amounts payable pursuant to address the New Revolving Commitments, this Amendment and the Required Lender AmendmentSection 2.14 in connection therewith, and covering such other matters relating (ii) to the Loan Partiesextent they determine to do so, reborrow such Loans from the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
Lenders (ivincluding any New Lenders) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After after giving effect to the borrowing new and/or increased Commitments becoming effective on such date, in the case of each of clauses (if anyi) of Revolving Loans on the Amendment Effective Dateand (ii) above such that, after giving effect thereto, the Borrowing Base Amount on Loans (including the Amendment Effective Date Types thereof and Interest Periods with respect thereto) shall be no less than held by the sum Lenders (including for such purposes the New Lenders) pro rata according to their respective Aggregate Exposure Percentages. Any prepayment and reborrowing pursuant to the preceding sentence shall be effected, to the maximum extent practicable, through the netting of (A) amounts payable between the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent Borrowers and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officerrespective Lenders.
(viiid) The conditions On the Termination Date, each Borrower shall repay all then outstanding Loans made by the Lenders to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfiedsuch Borrower.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of the Amendment Effective Date, all each Revolving Commitments Lender severally agrees to make revolving credit loans (“Revolving Loans”) in effect immediately prior Dollars to the Amendment Effective Date Borrowers from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added (after giving effect to the “Existing Revolving Commitments”use of proceeds thereof) will be terminated pursuant to Section 2.08(b) the sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) such Lender’s Revolving Percentage of the LC Commitment sum of any Issuing Bank or (x) the L/C Obligations then outstanding and (y) the aggregate principal amount of the Revolving Loans (including the Dollar Equivalent of Foreign Currency Loans) then outstanding and (ii) such Lender’s Swingline Exposure then outstanding, does not exceed the obligation amount of such Lender’s Revolving Commitment. During the Swingline Lender Revolving Commitment Period the Borrowers may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Revolving Loans may from time to make Swingline time be Eurocurrency Loans pursuant to Section 2.04 of or ABR Loans, as determined by the Credit Agreement, in each case as in effect immediately prior applicable Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.5 and 2.13.
(b) Subject to the terms and conditions set forth hereinhereof, on each Foreign Currency Lender agrees, with respect to any Foreign Currency Loan in a Foreign Currency for which it is designated a Foreign Currency Lender, to make Foreign Currency Loans to the Amendment Effective DateBorrowers from time to time during the Revolving Commitment Period; provided that (i) after giving effect to the requested Foreign Currency Loan, simultaneously with the termination Dollar Equivalent of the aggregate principal amount of Foreign Currency Loans outstanding at such time does not exceed the Foreign Currency Sublimit, (ii) after giving effect to the requested Foreign Currency Loan (and the use of proceeds thereof), the sum of (x) such Lender’s Revolving Percentage of the sum of (1) the L/C Obligations then outstanding and (2) the aggregate principal amount of the Revolving Commitments pursuant to clause Loans (aincluding the Dollar Equivalent of Foreign Currency Loans) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement then outstanding and (iiy) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be such Lender’s Swingline Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment and (iii) the commitment set forth with respect to Total Revolving Extensions of Credit outstanding at such New time (including the Dollar Equivalent of any Revolving Lender on Annex I heretoExtensions of Credit outstanding in currencies other than Dollars) does not exceed the Total Revolving Commitments. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender Foreign Currency Loans shall be responsible for any other New Revolving Lender’s failure to make Revolving Eurocurrency Loans.
(c) For Each Borrower shall repay all purposes of its outstanding Revolving Loans and Foreign Currency Loans on the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit AgreementMaturity Date.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject Notwithstanding anything to the satisfaction contrary contained herein, each Lender at its option may make any Loan to any Additional Borrower by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the following conditions:
(i) After giving effect obligation of such Additional Borrower to repay such termination Loan in accordance with the terms of this Agreement and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and not cause any Borrower or other Loan Party to incur as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel date of the Borrower, in each case addressed to the Administrative Agent and the Lenders exercise of such option any greater liability than it shall then have under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsSection 2.19 or Section 2.20(a).
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower in Dollars from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.5 and 2.10.
(b) Subject The Borrower may from time to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of time elect to increase the Revolving Commitments (a “Revolving Commitment Increase”) in a minimum amount of $5,000,000 so long as, after giving effect thereto, the aggregate amount of the Incremental Extensions of Credit and Revolving Commitment Increases does not exceed $250,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Revolving Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Revolving Lender”), to increase their existing Revolving Commitments, or extend Revolving Commitments, as the case may be, provided that (i) each Augmenting Revolving Lender, shall be subject to the approval of the Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Revolving Lender, the Borrower and such Increasing Revolving Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Revolving Lender, the Borrower and such Augmenting Revolving Lender execute an agreement substantially in the form of Exhibit H hereto. Increases and new Revolving Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent (asuch approval by the Administrative Agent not to be unreasonably withheld) aboveand the relevant Increasing Revolving Lenders or Augmenting Revolving Lenders and the Administrative Agent shall notify each Revolving Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) each Lender that has executed and delivered to on the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” proposed date of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 5.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and or waived by the Required Lender Amendment, Lenders and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) after giving effect to such Revolving Commitment Increase, the Borrower shall be in a form acceptable compliance with Section 7.1, and (iii) the Administrative Agent shall have received documents consistent with those delivered on the Closing Date under Section 5.1(f) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Commitments, (i) each relevant Increasing Revolving Lender and Augmenting Revolving Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Administrative Agent shall determine, for the benefit of the other Revolving Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders make to equal its Revolving Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Loans Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 2.5). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence in respect of each Eurodollar Loan shall be made subject to indemnification by the Borrower pursuant to the Borrower provisions of Section 2.18 if the deemed payment occurs other than on the Amendment Effective Datelast day of the related Interest Periods.
(viic) After giving effect to the borrowing (if any) of The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
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Sources: Credit Agreement (Gartner Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such ▇▇▇▇▇▇’s L/C Exposure then outstanding, does not exceed the amount of such ▇▇▇▇▇▇’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Term Benchmark Revolving Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $50,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $15,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$50,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower, the Administrative Agent and each Issuing Lender (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject i. During the Revolving Commitment Period, subject to the terms and conditions set forth hereinhereof, effective as including, without limitation delivery of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated an updated Borrowing Base Certificate and Borrowing Base Report pursuant to Section 2.08(b) of 3.2(a)(i), each Class A Revolving Conduit Lender may, in its sole discretion, and each Class A Revolving Committed Lender shall (severally, not jointly, or jointly and severally), make Class A Revolving Loans to the Credit Agreement; providedBorrower in an aggregate amount up to but not exceeding such Lender’s Class A Revolving Conduit Maximum Amount or Class A Revolving Committed Maximum Amount, howeveras the case may be, provided that if any Class A Revolving Conduit Lender, in its discretion, does not make a Class A Revolving Loan to the foregoing Borrower (or any portion thereof), the Class A Revolving Committed Lenders shall not affect make such Class A Revolving Loan to the Borrower, provided further that no Class A Revolving Lender shall make any such Class A Revolving Loan or portion thereof to the extent that, after giving effect to such Class A Revolving Loan:
(ia) the LC Commitment Total Utilization of any Issuing Bank or (ii) Class A Revolving Maximum Amount exceeds the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.Class A Borrowing Base;
(b) Subject the aggregate outstanding principal amount of the Class A Revolving Loans funded by such Class A Revolving Lender hereunder shall exceed its Class A Revolving Conduit Maximum Amount (in the case of a Class A Revolving Conduit Lender) or Class A Revolving Committed Maximum Amount (in the case of a Class A Revolving Committed Lender), and, for the avoidance of doubt, the Class A Revolving Maximum Amount shall be zero on the Revolving Commitment Termination Date.
ii. During the Revolving Commitment Period, subject to the terms and conditions set forth hereinhereof, on the Amendment Effective Dateincluding, simultaneously with the termination without limitation delivery of the Revolving Commitments an updated Borrowing Base Certificate and Borrowing Base Report pursuant to clause (a) aboveSection 3.2(a)(i), (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Class B Revolving Lender shall be responsible for any other New make Class B Revolving Loans to the Borrower in an aggregate amount up to but not exceeding such Lender’s failure to make Class B Revolving Loans.
(c) For all purposes of the Senior Loan DocumentsCommitment, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New provided that no Class B Revolving Lender pursuant to shall make any such Class B Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior Loan or portion thereof to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) aboveextent that, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After after giving effect to such termination and effectiveness and the borrowing (if any) of Class B Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.Loan:
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or L/C Obligations then outstanding, (ii) the obligation aggregate principal amount of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 then outstanding, (iii) the aggregate principal amount of Foreign Currency Fronting Loans then outstanding and (iv) its Bilateral Commitment, if any, does not exceed the Credit Agreementamount of such Lender’s Revolving Commitment, provided that in each case as in effect immediately prior to the Amendment Effective event that any
(b) The Borrower shall repay all outstanding Revolving Loans on the Revolving Termination Date.
(bc) Subject The Borrower may from time to time elect to increase the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of Revolving Commitments; provided that (i) the Revolving Commitments may not be increased by more than $50,000,000 pursuant to clause this paragraph and (aii) aboveeach increase effected pursuant to this paragraph shall be in a minimum amount of not less than $5,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Lender”), or by one or more banks, financial institutions or other entities (each such bank, financial institution or other entity, an “Augmenting Lender”), that agree to increase their existing Revolving Commitments or to extend Revolving Commitments, as the case may be, provided that (i) each Lender that has executed and delivered Augmenting Lender, shall be subject to the approval of the Borrower and the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement Agent and (ii) the “Borrower and each applicable Increasing Lender or Augmenting Lender shall execute all such documentation as the Administrative Agent shall reasonably specify to evidence its Revolving Commitment” of Commitment and its status as a Revolving Lender. Increases and new Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Lenders and the Administrative Agent shall notify each New Revolving affected Lender (thereof. Notwithstanding the “New Revolving Commitments”) will be foregoing, no increase in the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentsbecome effective under this paragraph unless, (i) on the Revolving Commitment proposed date of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 6.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing certificate to that effect dated such date and executed by a Responsible Officer of the Company and (ii) the Administrative Agent shall have received (with sufficient copies for each of the Lenders) documents consistent with those delivered on the Closing Date under paragraph (i) of Section 6.1 and clauses (ii) and (iii) of paragraph and (j) of Section 6.1 as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase and related matters and such other documents that the Administrative Agent shall reasonably request in a form acceptable connection therewith (which may include amendments to the Security Documents necessary or advisable in the judgment of the Administrative Agent in connection with such increase). On the effective date of any increase in the Revolving Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Revolving Lenders make Administrative Agent shall determine, for the Revolving Loans benefit of the other relevant Lenders, as being required in order to be made to the Borrower on the Amendment Effective Date.
(vii) After cause, after giving effect to such increase and the borrowing use of such amounts to make payments to such other relevant Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders to equal its Revolving Percentage of such outstanding Revolving Loans and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Commitments (with such reborrowing to consist of the Types of Loans, with related Interest Periods if anyapplicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 3.2). The deemed payments made pursuant to clause (ii) of Revolving Loans the immediately preceding sentence in respect of each Eurodollar Loan shall be subject to indemnification by the Borrower pursuant to the provisions of Section 4.11 if the deemed payment occurs other than on the Amendment Effective Date, last day of the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officerrelated Interest Periods.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Wta Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Lender severally agrees to make revolving credit loans in Dollars (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s L/C Exposure then outstanding, does not AMERICAS 91292609 exceed the amount of such Lender’s Revolving Commitment. During the Amendment Effective DateRevolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.2 and 2.6.
(b) Subject At any time, the Borrower and any one or more Lenders (including New Lenders) may agree that such Lender(s) shall make, obtain or increase the amount of their Revolving Commitments by executing and delivering to the terms Administrative Agent an Increased Revolving Commitment Activation Notice specifying the amount of such increase and conditions set forth herein, on the Amendment Effective applicable Increased Revolving Commitment Closing Date, simultaneously with . Notwithstanding the termination of the Revolving Commitments pursuant to clause (a) aboveforegoing, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page aggregate amount of incremental Revolving Commitments obtained pursuant to this Amendment as a “New Revolving Lender” Section 2.1(b) shall become or continue to benot exceed $100,000,000, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) incremental Revolving Commitments may not be made, obtained or increased during the “continuation of a Default or Event of Default, including after giving pro forma effect to the incremental Revolving Commitment” of each New Revolving Lender Commitments in question and (iii) the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of at least $25,000,000 (or, if less, the commitment set forth with respect to remaining unutilized portion of such New Revolving Lender on Annex I hereto$100,000,000). The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees to do so in its sole discretion.
(c) For Any additional bank, financial institution or other entity which, with the consent of the Borrower and the Administrative Agent (which consent shall not be unreasonably withheld or delayed), elects to become a “Lender” under this Agreement in connection with an increase described in Section 2.1(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit D-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Lender for all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination On each Increased Revolving Commitment Closing Date on which there are Revolving Loans outstanding, the New Lender(s) and/or Lender(s) that have increased their Revolving Commitments shall make Revolving Loans, the proceeds of which will be used to prepay such portions of the Existing Revolving Commitments pursuant to Loans of other Lenders, so that, after giving effect thereto, the resulting Revolving Loans outstanding are allocated among the Lenders in accordance with Section 1.2(a2.11(a) above, and based on the effectiveness respective Revolving Percentages of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After Lenders after giving effect to such termination and effectiveness and the borrowing (if any) of Increased Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Commitment Closing Date.
(vie) If any The Borrower shall repay the outstanding Revolving Loans are to be made of each Lender on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable Revolving Termination Date applicable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Datesuch Lender.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all (a) each Facility A Lender agrees to make Revolving Commitments in effect immediately prior to the Amendment Effective Date Loans (the “Existing Facility A Revolving CommitmentsLoans”) will be terminated pursuant from time to Section 2.08(btime during the Availability Period to the US Borrowers in Dollars and (b) of each Facility B Lender agrees to make Revolving Loans (the Credit Agreement; provided“Facility B Revolving Loans”) from time to time during the Availability Period to the Canadian Borrowers in Dollars, howeverif, that the foregoing shall not affect in each case after giving effect thereto:
(i) the LC Commitment Facility A Credit Exposure or Facility B Credit Exposure of any Issuing Bank Lender would not exceed such Lender’s Facility A Commitment or Facility B Commitment, respectively;
(ii) the obligation total Revolving Credit Exposure would not exceed the lesser of (x) the aggregate amount of the Swingline Lender Revolving Commitments and (y) the Aggregate Borrowing Base;
(iii) the total Facility A Credit Exposure would not exceed the lesser of (x) the aggregate amount of the Facility A Commitments and (y) the Aggregate Facility A Borrowing Base; and
(iv) the total Facility B Credit Exposure would not exceed the lesser of (x) the aggregate amount of the Facility B Commitments and (y) the Aggregate Borrowing Base minus the Facility A Credit Exposure; subject, in the case of each of clause (ii), (iii) and (iv) above, to the Administrative Agent’s authority, in its sole discretion, to make Swingline Loans Protective Advances pursuant to the terms of Section 2.04 of 2.04. Within the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject foregoing limits and subject to the terms and conditions set forth herein, on the Amendment Effective Dateeach Borrower may borrow, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed prepay and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make reborrow its Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Office Depot Inc)
Revolving Commitments. (ai) Subject On the Closing Date, the Revolving Loans of each Lender outstanding under the Existing Credit Facility (each as defined therein) on the Closing Date (immediately prior to the occurrence thereof), as set forth as “Existing Closing Date Loans” in Schedule 2.1(a)(i), shall be continued (on a cashless basis), and shall constitute and remain outstanding as Revolving Loans hereunder. The continuations of such Revolving Loans shall not be subject to any breakage or similar costs that might otherwise be payable pursuant to Section 2.16(c) or the equivalent provision of the Existing Credit Agreement. In furtherance of the foregoing, on the Closing Date, the initial Lenders hereunder shall make and receive payments among themselves, in a manner acceptable to and approved by the Administrative Agent, so that, after giving effect thereto, the Revolving Loans are, on (and immediately after the occurrence of) the Closing Date, held ratably by the Revolving Lenders in accordance with the respective Revolving Commitments of the Revolving Lenders on the Closing Date.
(ii) During the Revolving Commitment Period, subject to the terms and conditions set forth hereinhereof, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure severally agrees to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving which will be made in Dollars, to Borrowers in an aggregate amount up to but not exceeding such Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “’s Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party ; provided that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After after giving effect to the borrowing (if any) making of any Revolving Loans in no event shall the Total Utilization of Revolving Loans Commitments exceed the Revolving Commitments then in effect. Each Lender’s Revolving Commitment shall expire on the Amendment Effective Date, Revolving Commitment Termination Date and all Revolving Loans and all other amounts owed hereunder with respect to the Borrowing Base Amount on Revolving Loans and the Amendment Effective Date Revolving Commitments shall be paid in full no less later than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officersuch date.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Pattern Energy Group Inc.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower in Dollars from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.5 and 2.10.
(b) Subject The Borrower may from time to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of time elect to increase the Revolving Commitments (a “Revolving Commitment Increase”) in a minimum amount of $5,000,000 so long as, after giving effect thereto, the aggregate amount of the Incremental Extensions of Credit and Revolving Commitment Increases does not exceed $500,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Revolving Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Revolving Lender”), to increase their existing Revolving Commitments, or extend Revolving Commitments, as the case may be, provided that (i) each Augmenting Revolving Lender, shall be subject to the approval of the Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Revolving Lender, the Borrower and such Increasing Revolving Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Revolving Lender, the Borrower and such Augmenting Revolving Lender execute an agreement substantially in the form of Exhibit H hereto. Increases and new Revolving Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent (asuch approval by the Administrative Agent not to be unreasonably withheld) aboveand the relevant Increasing Revolving Lenders or Augmenting Revolving Lenders and the Administrative Agent shall notify each Revolving Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) each Lender that has executed and delivered to on the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” proposed date of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 5.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and or waived by the Required Lender Amendment, Lenders and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) after giving effect to such Revolving Commitment Increase, the Borrower shall be in a form acceptable compliance with Section 7.1, and (iii) the Administrative Agent shall have received documents consistent with those delivered on the Closing Date under Section 5.1(f) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Commitments, (i) each relevant Increasing Revolving Lender and Augmenting Revolving Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Administrative Agent shall determine, for the benefit of the other Revolving Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders make to equal its Revolving Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Loans Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 2.5). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence in respect of each Eurodollar Loan shall be made subject to indemnification by the Borrower pursuant to the Borrower provisions of Section 2.18 if the deemed payment occurs other than on the Amendment Effective Datelast day of the related Interest Periods. For the avoidance of doubt, no existing Lender will be required to provide any Revolving Commitment Increase and the Borrower shall have no obligation to offer any existing Lender the opportunity to provide any commitment for any Revolving Commitment Increase.
(viic) After giving effect to the borrowing (if any) of The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Gartner Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of from time to time during the Amendment Effective DateRevolving Commitment Period, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) each Dollar Revolving Lender severally agrees to make to the LC Borrower revolving credit loans denominated in Dollars ("DOLLAR REVOLVING LOANS") in an aggregate principal amount that will not result in such Lender's Revolving Loans under the Dollar Revolving Commitments exceeding such Lender's Dollar Revolving Commitment of any Issuing Bank or and (ii) the obligation of the Swingline each Multicurrency Revolving Lender severally agrees to make Swingline to the Borrower revolving credit loans denominated in Dollars or an Alternative Currency ("MULTICURRENCY REVOLVING LOANS"; together with the Dollar Revolving Loans, the "REVOLVING LOANS") in an aggregate principal amount that will not result at the time of such Borrowing in (A) the Dollar Amount of such Lender's Revolving Loans pursuant under the Multicurrency Revolving Commitments exceeding such Lender's Multicurrency Revolving Commitment or (B) the Dollar Amount of Multicurrency Revolving Loans in Alternative Currencies exceeding the Alternative Currency Revolving Sublimit. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to Section 2.04 of the Credit Agreementtime be Eurocurrency Loans or, in each the case of Dollar Revolving Loans or Multicurrency Revolving Loans in Dollars, ABR Loans, as in effect immediately prior determined by the Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.04 and 2.06.
(b) Subject to Each Revolving Loan under the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Dollar Revolving Commitments pursuant to clause (a) aboveor Multicurrency Revolving Commitments, (i) each Lender that has executed and delivered to as the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to case may be, shall be made as applicablepart of a Borrowing consisting of Revolving Loans made by the Lenders thereunder ratably in accordance with their respective Dollar Revolving Commitments or Multicurrency Revolving Commitments, a as the case may be. The failure of any Revolving Lender and a Lender under the Credit Agreement and (ii) the “to make any Revolving Commitment” of each New Loan required to be made by it shall not relieve any other Revolving Lender (of its obligations hereunder; PROVIDED that the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s 's failure to make Revolving LoansLoans as required.
(c) For all purposes At the commencement of each Interest Period for any Eurocurrency Revolving Borrowing, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $10,000,000 (or comparable amounts determined by the Administrative Agent in the case of Alternative Currency). At the time that each ABR Revolving Borrowing is made, such Borrowing shall be in an aggregate amount that is an integral multiple of $1,000,000 and not less than $5,000,000; PROVIDED that an ABR Revolving Borrowing may be in an aggregate amount that is equal to the entire unused balance of the Senior Loan Documents, (i) Total Dollar Revolving Commitments or the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Total Multicurrency Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent case may reasonably request, be. Borrowings of more than one Type and otherwise reasonably satisfactory to Class may be outstanding at the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionssame time; PROVIDED that there shall not at any time be more than a total of 12 Eurocurrency Revolving Borrowings outstanding.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as of the Amendment Effective Date, all each Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender severally agrees to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
revolving credit loans (b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior in Dollars to the Amendment Effective Date shall continue Borrowers from time to be Letters of Credit issued pursuant to time during the Credit Agreement.
Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added (d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After after giving effect to such termination and effectiveness and the borrowing (if anyuse of proceeds thereof) of Revolving Loans on to the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each sum of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ such ▇▇▇▇▇▇▇▇▇, General Counsel ’s Revolving Percentage of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (Ax) the L/C Obligations then outstanding and (y) the aggregate principal amount of the Revolving Loans then outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (Cii) any Additional Senior Debt outstanding on such ▇▇▇▇▇▇’s Swingline Exposure then outstanding, does not exceed the Amendment Effective Dateamount of such ▇▇▇▇▇▇’s Revolving Commitment. The During the Revolving Commitment Period the Borrowers may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Revolving Loans may from time to time be Term Benchmark Loans or ABR Loans, as determined by the applicable Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer2.13.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied[Reserved].
(ixc) Each Subsidiary Guarantor Borrower shall have entered into a Reaffirmation Agreement pursuant repay all of its outstanding Revolving Loans on the Maturity Date.
(d) Notwithstanding anything to which the contrary contained herein, each Lender at its option may make any Loan to any Additional Borrower by causing any domestic or foreign branch or Affiliate of such Subsidiary Guarantor reaffirms its obligations under Lender to make such Loan; provided that any exercise of such option shall not affect the Senior Subsidiary Guarantee obligation of such Additional Borrower to repay such Loan in accordance with the terms of this 55 Agreement and shall not cause any Borrower or other Loan Party to incur as of the other Senior Collateral Documents, in form and substance reasonably satisfactory to date of the Administrative Agentexercise of such option any greater liability than it shall then have under Section 2.19 or Section 2.20(a).
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as (1) each Dollar Revolving Lender severally agrees to make revolving credit loans in Dollars (“Dollar Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which does not exceed the amount of such Lender’s Dollar Revolving Commitment and (2) each Alternative Currency Revolving Lender severally agrees to make revolving credit loans in one or more Alternative Currencies (“Alternative Currency Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Alternative Currency Revolving Percentage of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement Obligations then outstanding and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of the Swingline Loans outstanding on then outstanding, does not exceed the Amendment Effective Dateamount of such Lender’s Alternative Currency Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, (B) prepaying the LC Exposure on Revolving Loans in whole or in part, and reborrowing, all in accordance with the Amendment Effective Date terms and (C) any Additional Senior Debt outstanding on the Amendment Effective Dateconditions hereof. The Dollar Revolving Loans and Alternative Currency Revolving Loans denominated in Dollars may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and the Borrowing Base Agent 2.12. The Alternative Currency Revolving Loans denominated in an Alternative Currency other than Dollars shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officerbe Eurodollar Loans.
(viiib) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) Borrower shall have been satisfiedrepay all outstanding Revolving Loans on the applicable Maturity Date.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered By written notice sent to the Administrative Agent, on or prior the Borrower may at any time and from time to time after the Amendment Effective Dateearlier of the Acquisition Funding Date and the Commitment Termination Date request (x) an increase of the aggregate amount of the Revolving Commitments (each such increase, a signature page “Revolving Commitment Increase”) or (y) a new tranche of revolving commitments (the “Limited Condition Transaction Revolving Commitments”) to this Amendment as fund a “New Revolving Lender” Limited Condition Transaction, in each case, by an aggregate amount equal to any integral multiple of $5,000,000; provided that at the time of each such request and upon the effectiveness of each Incremental Facility Amendment, (i) no Default shall become have occurred and be continuing or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement shall result therefrom and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documentssum of, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of without duplication (A) the aggregate principal total amount of Loans outstanding on the Amendment Effective Dateall Commitments and Limited Condition Transaction Revolving Commitments after giving effect to any such increase or effectiveness, plus (B) the LC Exposure on initial principal amount of all Term Loans (including the Amendment Effective Date Tranche A Term Loans and any Incremental Term Loans) (Cafter giving effect to any incurrence pursuant to clause (b) below), and in each case giving effect to any Additional Senior Debt outstanding on repayment or refinancing (or replacement of Commitments) to occur in connection therewith, shall not exceed the Amendment Effective Date. The Administrative Agent and Incremental Amount; provided, further that notwithstanding the Borrowing Base Agent shall foregoing or anything to the contrary herein, if such Limited Condition Transaction Revolving Commitments have received been requested in connection with a completed Borrowing Base Certificate dated Limited Condition Transaction, at the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment Borrower’s option, the condition set forth in Section 1.3 hereof clause (other i) above shall be tested at the time a definitive agreement for such Limited Condition Transaction has been entered into unless otherwise set forth in the applicable Incremental Facility Amendment. Other than paragraph (b) thereof) pricing and fees, the commitments and loans with respect to Limited Condition Transaction Revolving Commitments shall have been satisfiedthe same terms as the Revolving Commitments and Revolving Loans, as the case may be.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all each Revolving Commitments in effect immediately prior Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Amendment Effective Date (Borrower from time to time during the “Existing Revolving Commitments”) will be terminated pursuant Commitment Period in an aggregate principal amount at any one time outstanding which, when added to Section 2.08(b) such Revolving Lender’s Revolving Percentage of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or L/C Obligations then outstanding and (ii) the obligation aggregate principal amount of the Swingline Lender Loans then outstanding, does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Loans may from time to make Swingline time be Eurodollar Loans pursuant to Section 2.04 of or Prime Loans, as determined by the Credit Agreement, in each case as in effect immediately prior Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.04 and 2.07.
(b) Subject The Borrower (subject to the terms approval of its board of directors (or any committee thereof)) and conditions set forth hereinany one or more Lenders (including New Lenders) may, on at any time after the Amendment Effective Date, simultaneously with so long as no Default or Event of Default shall have occurred and be continuing, agree that each such Lender shall increase the termination amount of its Revolving Commitment (any Lender so increasing the amount of its Revolving Commitments pursuant Commitment, an “Increasing Lender”) or obtain a new Revolving Commitment by executing and delivering to clause (a) above, the Administrative Agent an Increased Revolving Facility Activation Notice specifying (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement amount of such increase and (ii) the “applicable Increased Revolving Commitment” of Facility Effective Date. Notwithstanding the foregoing, (i) the Total Revolving Commitments may not be increased by more than $20,000,000 and (ii) each New Revolving Lender (the “New Revolving Commitments”) will increase effected pursuant to this paragraph shall be the in a minimum amount of the commitment set forth with respect to such New Revolving Lender on Annex I heretoat least $3,000,000. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving No Lender shall be responsible for have any other New Revolving Lender’s failure obligation to make Revolving Loansparticipate in any increase described in this paragraph unless it agrees in writing to do so in its sole discretion.
(c) For all purposes Any additional bank, financial institution or other entity which, with the consent of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, Borrower and the Loans made by each New Revolving Lender pursuant Administrative Agent (which consent shall not be unreasonably withheld), elects to such Revolving Commitments, shall constitute become a “Revolving CommitmentLender” under this Agreement in connection with any transaction described in Section 2.03(b) shall execute a New Lender Supplement (each, a “New Lender Supplement”), substantially in the form of Exhibit F-1, whereupon such bank, financial institution or other entity (a “New Lender”) shall become a Revolving Lender for all purposes and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date same extent as if originally a party hereto and shall continue to be Letters of Credit issued pursuant bound by and entitled to the Credit benefits of this Agreement.
(d) The termination of the Existing Revolving Commitments If, immediately prior to any increase pursuant to Section 1.2(a2.03(b) above, and the effectiveness there are any Revolving Extensions of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective DateCredit outstanding, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to with the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel consent of the Borrower, shall be permitted to adjust the provisions hereof relating to borrowings, continuations and conversions, Interest Periods and prepayments in order to effect within a reasonable period of time ratable participation by each case addressed to Increasing Lender and each New Lender with the Administrative Agent and other Revolving Lenders in the Lenders under the Credit Agreementoutstanding Revolving Extensions of Credit, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing each tranche of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) Loans. Any prepayment of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date that are Eurodollar Loans as a result of any such adjustments or otherwise shall in any event be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory subject to the Administrative Agentprovisions of Section 2.16.
Appears in 1 contract
Sources: Credit Agreement (Jupitermedia Corp)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.5 and 2.10.
(b) Subject The Borrower may from time to time elect to increase the terms and conditions set forth hereinRevolving Commitments in a minimum amount of $5,000,000 so long as, on after giving effect thereto, the Amendment Effective Date, simultaneously with the termination aggregate amount of the Revolving Commitments does not exceed $400,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”), to increase their existing Revolving Commitments, or extend Revolving Commitments, as the case may be, provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. Increases and new Revolving Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent (asuch approval by the Administrative Agent not to be unreasonably withheld) aboveand the relevant Increasing Lenders or Augmenting Lenders and the Administrative Agent shall notify each Revolving Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) each Lender that has executed and delivered to on the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” proposed date of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 5.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and or waived by the Required Lender Amendment, Lenders and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received documents consistent with those delivered on the Closing Date under Section 5.1(f) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in a form acceptable the Revolving Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Administrative Agent shall determine, for the benefit of the other Revolving Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders make to equal its Revolving Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Loans Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 2.5). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence in respect of each Eurodollar Loan shall be made subject to indemnification by the Borrower pursuant to the Borrower provisions of Section 2.18 if the deemed payment occurs other than on the Amendment Effective Datelast day of the related Interest Periods.
(viic) After giving effect to the borrowing (if any) of The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Gartner Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as (1) each Dollar Revolving Lender severally agrees to make revolving credit loans in Dollars (“Dollar Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Dollar Revolving Percentage of the Amendment Effective DateLC Obligations then outstanding, all Revolving Commitments in effect immediately prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall does not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject to the terms and conditions set forth herein, on the Amendment Effective Date, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be exceed the amount of the commitment set forth with respect to such New Lender’s Dollar Revolving Commitment and (2) each Alternative Currency Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure severally agrees to make revolving credit loans in one or more Alternative Currencies (“Alternative Currency Revolving Loans.
(c”) For all purposes of to the Senior Loan Documents, (i) Borrower from time to time during the Revolving Commitment of each New Revolving LenderPeriod in an aggregate principal amount at any one time outstanding which, and the Loans made by each New Revolving Lender pursuant when added to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel ’s Alternative Currency Revolving Percentage of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (Ai) the LC Obligations then outstanding and (ii) the aggregate principal amount of the Swingline Loans outstanding on then outstanding, does not exceed the Amendment Effective Dateamount of such Lender’s Alternative Currency Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, (B) prepaying the LC Exposure on Revolving Loans in whole or in part, and reborrowing, all in accordance with the Amendment Effective Date terms and (C) any Additional Senior Debt outstanding on the Amendment Effective Dateconditions hereof. The Dollar Revolving Loans and Alternative Currency Revolving Loans denominated in Dollars may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Administrative Agent in accordance with Sections 2.5 and the Borrowing Base Agent 2.12. The Alternative Currency Revolving Loans denominated in an Alternative Currency other than Dollars shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officerbe Eurodollar Loans.
(viiib) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) Borrower shall have been satisfiedrepay all outstanding Revolving Loans on applicable Maturity Date.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Davita Inc.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender (acting through any of the Amendment Effective Dateits branches or affiliates) severally agrees to make revolving credit loans (“Revolving Loans”) in Dollars or in one or more Foreign Currencies (such Revolving Loans, all Revolving Commitments in effect immediately prior “Foreign Currency Loans”) to the Amendment Effective Date Borrowers from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added (after giving effect to the “Existing Revolving Commitments”use of proceeds thereof) will be terminated pursuant to Section 2.08(b) the sum of the Credit Agreement; provided, however, that the foregoing shall not affect (i) such Lender’s Revolving Percentage of the LC Commitment sum of any Issuing Bank or (x) the L/C Obligations then outstanding and (y) the aggregate principal amount of the Revolving Loans (including the Dollar Equivalent of Foreign Currency Loans) then outstanding, (ii) such Lender’s Swingline Exposure then outstanding, does not exceed the obligation amount of such ▇▇▇▇▇▇’s Revolving Commitment and (iii) the Swingline Lender Total Revolving Extensions of Credit outstanding at such time (including the Dollar Equivalent of any Revolving Extensions of Credit outstanding in currencies other than Dollars) does not exceed the Total Revolving Commitments. During the Revolving Commitment Period the Borrowers may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. Revolving Loans may from time to make Swingline time be Eurocurrency Loans pursuant to Section 2.04 or (other than in the case of Foreign Currency Loans) ABR Loans or Term Benchmark Loans, as determined by the Credit Agreement, in each case as in effect immediately prior applicable Borrower and notified to the Amendment Effective DateAdministrative Agent in accordance with Sections 2.5 and 2.13.
(b) Subject to the terms and conditions set forth hereinhereof, on each Revolving Lender agrees to make Foreign Currency Loans to the Amendment Effective DateBorrowers from time to time during the Revolving Commitment Period; provided that (i) after giving effect to the requested Foreign Currency Loan, simultaneously with the termination Dollar Equivalent of the sum of the aggregate principal amount of Foreign Currency Loans and any L/C Exposure denominated in any L/C Foreign Currency outstanding at such time does not exceed the Foreign Currency Sublimit, (ii) after giving effect to the requested Foreign Currency Loan (and the use of proceeds thereof), the sum of (x) such Lender’s Revolving Percentage of the sum of (1) the L/C Obligations then outstanding (including the Dollar Equivalent of any L/C obligations denominated in any L/C Foreign Currency) and (2) the aggregate principal amount of the Revolving Commitments pursuant to clause Loans (aincluding the Dollar Equivalent of Foreign Currency Loans) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement then outstanding and (iiy) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be such Lender’s Swingline Exposure then outstanding, does not exceed the amount of such Lender’s Revolving Commitment and (iii) the commitment set forth with respect to Total Revolving Extensions of Credit outstanding at such New time (including the Dollar Equivalent of any Revolving Lender on Annex I heretoExtensions of Credit outstanding in currencies other than Dollars) does not exceed the Total Revolving Commitments. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender Foreign Currency Loans shall be responsible for any other New Revolving Lender’s failure to make Revolving Eurocurrency Loans.
(c) For Each Borrower shall repay all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “its outstanding Revolving Loans”, respectivelyincluding Foreign Currency Loans, under on the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit AgreementInitial Maturity Date.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject Notwithstanding anything to the satisfaction contrary contained herein, each Lender at its option may make any Loan to any Additional Borrower by causing any domestic or foreign branch or Affiliate of such Lender to make such Loan; provided that any exercise of such option shall not affect the following conditions:
(i) After giving effect obligation of such Additional Borrower to repay such termination Loan in accordance with the terms of this Agreement and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and not cause any Borrower or other Loan Party to incur as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel date of the Borrower, in each case addressed to the Administrative Agent and the Lenders exercise of such option any greater liability than it shall then have under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinionsSection 2.19 or Section 2.20(a).
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Tempur Sealy International, Inc.)
Revolving Commitments. (a) Subject to the terms and conditions set forth hereinhereof, effective as each Revolving Lender severally agrees to make revolving credit loans (“Revolving Loans”) to the Borrower from time to time during the Revolving Commitment Period in an aggregate principal amount at any one time outstanding which, when added to such Lender’s Revolving Percentage of the Amendment Effective DateL/C Obligations then outstanding does not exceed the amount of such Lender’s Revolving Commitment. During the Revolving Commitment Period the Borrower may use the Revolving Commitments by borrowing, prepaying the Revolving Loans in whole or in part, and reborrowing, all in accordance with the terms and conditions hereof. The Revolving Commitments in effect immediately prior Loans may from time to time be Eurodollar Loans or ABR Loans, as determined by the Borrower and notified to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, Administrative Agent in each case as in effect immediately prior to the Amendment Effective Dateaccordance with Sections 2.5 and 2.10.
(b) Subject The Borrower may from time to time elect to increase the terms and conditions set forth hereinRevolving Commitments in a minimum amount of $5,000,000 so long as, on after giving effect thereto, the Amendment Effective Date, simultaneously with the termination aggregate amount of the Revolving Commitments does not exceed $175,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”), to increase their existing Revolving Commitments, or extend Revolving Commitments, as the case may be, provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower and the Administrative Agent (such approval by the Administrative Agent not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. Increases and new Revolving Commitments created pursuant to this clause shall become effective on the date agreed by the Borrower, the Administrative Agent (asuch approval by the Administrative Agent not to be unreasonably withheld) aboveand the relevant Increasing Lenders or Augmenting Lenders and the Administrative Agent shall notify each Revolving Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender), shall become effective under this paragraph unless, (i) each Lender that has executed and delivered to on the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” proposed date of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateincrease, the conditions set forth in paragraphs (a), ) and (b) and (c) of Section 4.02 of the Credit Agreement 5.2 shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and or waived by the Required Lender Amendment, Lenders and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request certificate to that effect dated such date and executed by a Responsible Officer of the Borrower and (ii) the Administrative Agent shall have received documents consistent with those delivered on the Effective Date under Section 5.1(f) as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in a form acceptable the Revolving Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent requesting that such amounts in immediately available funds as the New Administrative Agent shall determine, for the benefit of the other Revolving Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Revolving Lenders, each Revolving Lender’s portion of the outstanding Revolving Loans of all the Revolving Lenders make to equal its Revolving Percentage of such outstanding Revolving Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Loans as of the date of any increase in the Revolving Loans Commitments (with such reborrowing to consist of the Types of Revolving Loans, with related Interest Periods if applicable, specified in a notice delivered by the Borrower in accordance with the requirements of Section 2.5). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence in respect of each Eurodollar Loan shall be made subject to indemnification by the Borrower pursuant to the Borrower provisions of Section 2.18 if the deemed payment occurs other than on the Amendment Effective Datelast day of the related Interest Periods.
(viic) After giving effect to the borrowing (if any) of The Borrower shall repay all outstanding Revolving Loans on the Amendment Effective Revolving Termination Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Gartner Inc)
Revolving Commitments. (a) Subject to the terms and conditions set forth herein, effective as of the Amendment Effective Date, all (a) each Facility A Lender agrees to make Revolving Commitments in effect immediately prior to the Amendment Effective Date Loans (the “Existing Facility A Revolving CommitmentsLoans”) will be terminated pursuant from time to Section 2.08(btime during the Availability Period to the US Borrowers in Dollars and (b) of each Facility B Lender agrees to make Revolving Loans (the Credit Agreement; provided“Facility B Revolving Loans”) from time to time during the Availability Period to the Canadian Borrowers in Dollars, howeverif, that the foregoing shall not affect in each case after giving effect thereto:
(i) the LC Commitment Facility A Credit Exposure or Facility B Credit Exposure of any Issuing Bank Lender would not exceed such ▇▇▇▇▇▇’s Facility A Commitment or Facility B Commitment, respectively;
(ii) the obligation total Revolving Credit Exposure would not exceed the lesser of (x) the aggregate amount of the Swingline Lender Revolving Commitments and (y) the Aggregate Borrowing Base;
(iii) the total Facility A Credit Exposure would not exceed the lesser of (x) the aggregate amount of the Facility A Commitments and (y) the Aggregate Facility A Borrowing Base; and
(iv) the total Facility B Credit Exposure would not exceed the lesser of (x) the aggregate amount of the Facility B Commitments and (y) the Aggregate Borrowing Base minus the Facility A Credit Exposure; subject, in the case of each of clause (ii), (iii) and (iv) above, to the Administrative Agent’s authority, in its sole discretion, to make Swingline Loans Protective Advances pursuant to the terms of Section 2.04 of 2.04. Within the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject foregoing limits and subject to the terms and conditions set forth herein, on the Amendment Effective Dateeach Borrower may borrow, simultaneously with the termination of the Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed prepay and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make reborrow its Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Second Amendment (ODP Corp)
Revolving Commitments. From the Third RestatementSecond Amendment Effective Date to the Revolving Facility Termination Date, (a) Subject to each Lender severally agrees, on the terms and conditions set forth hereinin this Agreement, effective as of the Amendment Effective Date, all to make Revolving Commitments in effect immediately prior Loans to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant Company from time to Section 2.08(b) of the Credit Agreement; providedtime, however, that the foregoing shall not affect (i) the LC Commitment of any Issuing Bank or (ii) the obligation of the Swingline Lender to make Swingline Loans pursuant to Section 2.04 of the Credit Agreement, in each case as in effect immediately prior to the Amendment Effective Date.
(b) Subject each BSub Lender with respect to a Borrowing Subsidiary severally agrees, on the terms and conditions set forth hereinin this Agreement, on the Amendment Effective Date, simultaneously with the termination of the to make Multicurrency Revolving Commitments pursuant to clause (a) above, (i) each Lender that has executed and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect Loans to such New Revolving Borrowing Subsidiary (and each other Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of severally agrees that it will purchase a participation in each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments Loan if required pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the conditions set forth in paragraphs (a), (b2.25) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the BorrowerIssuer agrees tothat it may, in its sole discretion, issue Letters of Credit denominated in Agreed Currencies for the account of any Borrower from time to time (and each case addressed Revolving Lender severally agrees to the Administrative Agent and the Lenders under the participate in each such Letter of Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties more fully set forth in Section 2.1 hereof are true 2.18); provided that (i) the Aggregate Outstanding Revolving Credit Exposure shall not at any time exceed the Aggregate Revolving Commitment, (ii) the Outstanding Revolving Credit Exposure of any Lender shall not at any time exceed such Lender’s Revolving Commitment and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (Aiii) the aggregate principal amount Dollar Amount of Loans all outstanding on the Amendment Effective DateMulticurrency Revolving Loans, (B) the LC Exposure on not denominated in Dollars and Swingline Exposure not denominated in Dollars shall not at any time exceed $100,000,000. Subject to the Amendment Effective Date terms of this Agreement, the Borrowers may borrow, repay and (C) reborrow at any Additional Senior Debt outstanding on time prior to the Amendment Effective Revolving Facility Termination Date. The Administrative Agent and Revolving Commitments shall expire on the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial OfficerRevolving Facility Termination Date.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (Bemis Co Inc)
Revolving Commitments. (a) Subject to and upon the terms and conditions set forth hereinin this Agreement, effective as of each Lender severally agrees to make revolving loans (collectively, the Amendment Effective Date, all “Conventional Revolving Commitments in effect immediately Loans”) to the Company on any one or more Business Days on or after the date hereof and prior to the Amendment Effective Date (the “Existing Revolving Commitments”) will be terminated pursuant Credit Termination Date, up to Section 2.08(b) of the Credit Agreement; provided, however, that the foregoing shall an aggregate principal amount not affect exceeding at any one time outstanding an amount equal to (i) the LC such Lender’s Revolving Commitment of any Issuing Bank or less (ii) the obligation principal amount of all Alternate Currency Loans (each calculated in its Dollar equivalent on the Swingline Borrowing Date of such Conventional Revolving Loan) and Discretionary Revolving Loans outstanding to such Lender to make Swingline and the LC Exposure of such Lender at such time, if any; provided that in no event shall the aggregate outstanding principal amount of Conventional Revolving Loans, Discretionary Revolving Loans, Alternate Currency Loans (each calculated in its Dollar equivalent) and the aggregate LC Exposure ever exceed $2,250,000,000, as such amount may be increased or reduced pursuant to Section 2.04 the terms of the Credit this Agreement, . Each Conventional Revolving Borrowing shall be in each case as in effect immediately prior to the Amendment Effective Date.
(b) an aggregate amount of not less than $2,000,000 and an integral multiple of $250,000. Subject to the terms foregoing, each Conventional Revolving Borrowing shall be made simultaneously from the Lenders according to their Borrowing Pro Rata Shares of the principal amount requested for each Conventional Revolving Borrowing and conditions set forth hereinshall consist of Conventional Revolving Loans of the same type (e.g., on the Amendment Effective DateAlternate Base Rate Loans, simultaneously Federal Funds Rate Loans or Eurodollar Loans) with the termination of the Revolving Commitments pursuant to clause (a) above, (i) same Interest Period from each Lender that has executed Lender. Within such limits and delivered to the Administrative Agent, on or prior to the Amendment Effective Date, a signature page to this Amendment as a “New Revolving Lender” shall become or continue to be, as applicable, a Revolving Lender and a Lender under the Credit Agreement and (ii) the “Revolving Commitment” of each New Revolving Lender (the “New Revolving Commitments”) will be the amount of the commitment set forth with respect to during such New Revolving Lender on Annex I hereto. The New Revolving Commitments of the New Revolving Lenders are several and no New Revolving Lender shall be responsible for any other New Revolving Lender’s failure to make Revolving Loans.
(c) For all purposes of the Senior Loan Documents, (i) the Revolving Commitment of each New Revolving Lender, and the Loans made by each New Revolving Lender pursuant to such Revolving Commitments, shall constitute a “Revolving Commitment” and “Revolving Loans”, respectively, under the Credit Agreement and (ii) all Letters of Credit outstanding immediately prior to the Amendment Effective Date shall continue to be Letters of Credit issued pursuant to the Credit Agreement.
(d) The termination of the Existing Revolving Commitments pursuant to Section 1.2(a) above, and the effectiveness of the New Revolving Commitments pursuant to Section 1.2(b) above, in each case on the Amendment Effective Date, are subject to the satisfaction of the following conditions:
(i) After giving effect to such termination and effectiveness and the borrowing (if any) of Revolving Loans on the Amendment Effective Dateperiod, the conditions set forth in paragraphs (aCompany may borrow, repay and reborrow under this Section 2.01(a), (b) and (c) of Section 4.02 of the Credit Agreement shall be satisfied on and as of the Amendment Effective Date, and the New Revolving Lenders shall have received a certificate of a Financial Officer dated the Amendment Effective Date to such effect.
(ii) The Collateral and Guarantee Requirement shall have been satisfied.
(iii) The Administrative Agent shall have received a favorable legal opinion of each of (i) Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP, counsel to the Borrower and (ii) M▇▇▇ ▇▇▇▇▇▇▇▇▇, General Counsel of the Borrower, in each case addressed to the Administrative Agent and the Lenders under the Credit Agreement, including the New Revolving Lenders, and dated the Amendment Effective Date, in substantially the forms delivered in connection with Refinancing Amendment No. 2, dated as of June 26, 2009, to the Credit Agreement, modified, however, to address the New Revolving Commitments, this Amendment and the Required Lender Amendment, and covering such other matters relating to the Loan Parties, the other Senior Loan Documents, the Senior Collateral and the transactions contemplated hereby to occur on the Amendment Effective Date as the Administrative Agent may reasonably request, and otherwise reasonably satisfactory to the Administrative Agent. The Borrower hereby requests such counsel to deliver such opinions.
(iv) The Administrative Agent shall have received such documents and certificates as the Administrative Agent or its counsel may reasonably request relating to the good standing of the Borrower and the organization and existence of each Loan Party, the organizational documents of each Loan Party, the resolutions of each Loan Party that authorize the transactions contemplated hereby, the incumbency and authority of the Person or Persons executing and delivering the Amendment and the other documents contemplated hereby, all in form and substance reasonably satisfactory to the Administrative Agent.
(v) The Administrative Agent shall have received a certificate, dated the Amendment Effective Date and signed by a Financial Officer of the Borrower, certifying that the representations and warranties set forth in Section 2.1 hereof are true and correct as of the Amendment Effective Date.
(vi) If any Revolving Loans are to be made on the Amendment Effective Date, the Administrative Agent shall have received a borrowing request in a form acceptable to the Administrative Agent requesting that the New Revolving Lenders make the Revolving Loans to be made to the Borrower on the Amendment Effective Date.
(vii) After giving effect to the borrowing (if any) of Revolving Loans on the Amendment Effective Date, the Borrowing Base Amount on the Amendment Effective Date shall be no less than the sum of (A) the aggregate principal amount of Loans outstanding on the Amendment Effective Date, (B) the LC Exposure on the Amendment Effective Date and (C) any Additional Senior Debt outstanding on the Amendment Effective Date. The Administrative Agent and the Borrowing Base Agent shall have received a completed Borrowing Base Certificate dated the Amendment Effective Date and signed by a Financial Officer.
(viii) The conditions to effectiveness of this Amendment set forth in Section 1.3 hereof (other than paragraph (b) thereof) shall have been satisfied.
(ix) Each Subsidiary Guarantor shall have entered into a Reaffirmation Agreement pursuant to which such Subsidiary Guarantor reaffirms its obligations under the Senior Subsidiary Guarantee Agreement and the other Senior Collateral Documents, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract