Incremental Credit Extensions. (a) One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to time after the Escrow Release Date, request Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 5 contracts

Samples: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (SSI - AK Holdings, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ The Borrower may, at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective term loans (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6~~; provided, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment, no Event of Default shall exist~~ Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), subject to Section 2.13(d), (i) no Default or Event of Default shall ~~be continuing;~~ exist and (ii) ~~after giving effect~~ the Borrower shall be in Pro Forma Compliance with the financial covenant in Section 7.08. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25 million (provided, that such amount may be less than $25 million if such amount represents all remaining availability under the limit set forth in the next sentence or if the Administrative Agent consents to such ~~Incremental Term Loan Commitments~~lesser amount). Notwithstanding anything to the contrary herein, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds aggregate amount of the Incremental Term Loans (other than, for the avoidance of doubt, those established in respect of Extended Term Loans pursuant to Section 2.15) shall not exceed the Maximum Incremental Term Loan Amount. (b) The Incremental Term Loans (i) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (ii) shall not mature earlier than the Maturity Date with respect to the Term Loans, (iii) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (iv) shall be entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (v) shall bear interest at rates and be entitled to upfront fees as shall be determined by the Borrower and the applicable new Lenders; provided, however, that if the All-In Yield with respect to any such Incremental Term Loans (except for Incremental Term Loans having a maturity date and a Weighted Average Life to Maturity that are each two years or more later than the Maturity Date and the remaining Weighted Average Life to Maturity of the Term Loans) shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be ~~used~~ determined by the Borrower; provided that, to ~~finance an Acquisition~~the extent such terms and documentation are not consistent with the Term Facility with respect to periods on or prior to the Maturity Date thereof (except to the extent permitted by clauses (i) through (v) above), ~~such representations~~ they shall be ~~limited~~ reasonably satisfactory to the ~~Specified Representations~~ Administrative Agent (it being understood to the extent that any financial maintenance covenant is added or a restrictive covenant is made more restrictive for the benefit of any Incremental Term Loans, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added or similarly made more restrictive for the benefit of any corresponding existing Term Loans or is made applicable only after the Maturity Date of the Term Loans) and ~~Specified Acquisition Agreement Representations~~subject to clauses (ii) and (iii) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by the Borrower and the Lenders thereof. (c) Each notice from the Borrower pursuant to this Section 2.13 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans. Incremental Term Loans may be made by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent shall have ~~received customary legal opinions, board resolutions and officers’ certificates consistent~~ consented (with ~~those delivered on the Original Closing Date other than changes to~~ such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably ~~withheld~~withheld or delayed) ~~and furnished~~ to such Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.06(b) for an assignment of Term Loans to such Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other ~~parties hereto. (d)~~ Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment ~~may~~shall, without the consent of ~~Parent Borrower,~~ the Agents or ~~any other Loan Party, Agent or~~ the Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower,~~ Borrower to effect the provisions of this Section ~~2.8~~2.13, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definitions of Required Lenders and Required Class Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as the Borrower and the applicable ~~Borrowers will~~ Lenders and Additional Lenders shall agree. The Borrower may use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term ~~Loans~~ Loans, unless it so agrees. . (d) Notwithstanding anything to the contrary in this Section 2.13 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (e) The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate, including to reflect any Incremental Term Loans provided on a “certain funds” basis) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans are provided with the benefit of the applicable Loan Documents. (f) This Section ~~2.8~~ 2.13 shall supersede any provisions in Section ~~2.7~~ 2.12 or ~~12.3~~ 10.01 to the contrary.

Appears in 4 contracts

Samples: Credit Agreement, Credit Agreement (Time Inc.), Credit Agreement (Time Inc.)

Incremental Credit Extensions. (a) ~~One~~ Until the eighteen (18) month anniversary of the Closing Date and so long as (x) the Delayed Draw Term Commitments have been fully funded prior to, or ~~more Borrowers~~ at the time of, the addition of any Incremental Facility and (~~which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which~~ y) the Incremental Term ~~Commitments are requested)~~ Loan Conditions shall have been satisfied, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental~~ to increase the amount of Term ~~Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ Loans or add one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans ~~with interests rates and/or amortization and/or maturity and/or other terms different from~~ (any such Term Loans or additional tranche of term loans, the ~~Term B Loans (~~“Incremental Term Loans”). ~~The proceeds~~ Notwithstanding anything to contrary herein, the aggregate amount of all Incremental Facilities (determined at the time of incurrence) shall not exceed $100,000,000. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above or is incurred in connection with a Permitted Acquisition. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations under this Agreement. (b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the then-existing Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the then-existing Term Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any then-existing Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided that, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under such Term Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term Loans shall be required, but only to the extent an increase in the interest rate floor in such Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to such Term Loans shall be increased to the extent of such differential between interest rate floors), (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the then-existing Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-existing Term Loans, (v) any Incremental Term Loans shall ~~not~~ be ~~used to make Restricted Payments~~ secured only by the Collateral on an equal priority basis, (vi) except as otherwise required or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that permitted in clauses (i) ~~except as to pricing, amortization and final maturity date~~ through (~~which shall, subject to clause (ii~~v) ~~and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion)~~above, the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms ~~as shall be reasonably satisfactory to the Agent, (ii) the final maturity date~~ of any Incremental Term Loans shall be ~~no earlier than~~ on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or the Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of then-existing Term Loans; provided that such terms may be inconsistent with the terms of the then existing Term Loans if reasonably satisfactory to the Administrative Agent (it being understood that no consent shall be required from the Administrative Agent for terms or conditions that are more restrictive than the terms or conditions of the then-existing Term Loans if the Lenders receive the benefit of such terms or conditions through their addition to the then-existing Term Loans or to the extent that they apply solely to periods following the Maturity Date with respect to the then-existing Term Loans); and (vii) no Event of Default has occurred and is continuing (or if the proceeds of such Incremental Facility are to be used, in whole or in part, to finance a Permitted Acquisition, no Default or Event of Default shall result therefrom). (c) Each notice from the Borrower pursuant to this Section 2.12 shall set forth the requested amount and proposed terms of the relevant Incremental Term ~~Loans are established~~Loans. Any additional bank, ~~and~~financial institution, ~~(iii) the Weighted Average Life~~ existing Lender or other Person that elects to ~~Maturity of any~~ extend Incremental Term Loans shall be ~~no shorter than~~ reasonably satisfactory to the ~~remaining Weighted Average Life~~ Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to ~~Maturity of~~ an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the ~~Term B Loans~~other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that ~~the Effective Yield in respect of such Incremental Term Loan is~~ no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans ~~(or 2.00% in the case of Base Rate Incremental Term Loans~~may be provided by an Affiliated Lender unless, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term ~~Loan Commitments~~Loans, the ~~conditions~~ aggregate Outstanding Amount of ~~Section 4.2(a~~all Term Loans that are held by Affiliated Lenders (other than Affiliated Debt Funds) does not exceed 25% of the aggregate Outstanding Amount of the Term Loans then outstanding. Existing Lenders as of such time shall first be offered an opportunity to provide or participate in such additional tranches of loans or increases to existing tranches of loans on a pro rata basis (or less than pro rata basis at the election of each existing Lender); provided, that each existing such Lender shall, to the extent that it intends to provide or participate in such additional tranches of loans or increases to existing tranches of loans, respond as soon as reasonably practicable and in any event within fifteen (15) Business Days after the Borrower makes such offer to such Lender (and if no such response is received by the Borrower within such period, such Lender will be deemed to have declined the opportunity to provide or participate in such additional tranches of loans or increases to existing tranches of loans). No Lender shall be ~~satisfied~~ obligated to provide any Incremental Term Loans, unless it so agrees. Term Commitments in respect of any Incremental Term Loans may become Term Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.12. The effectiveness of any Incremental Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of ~~the making of~~ such ~~Loan~~Credit Extension” ~~or similar language~~ in ~~such~~ Section ~~4.2(a)~~ 4.02 shall be deemed to refer to the ~~effective date of such~~ Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Facility Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoDate). (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 4 contracts

Samples: Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.), Term Loan Credit Agreement (RumbleOn, Inc.)

Incremental Credit Extensions. (a) ~~One~~ The Borrowers may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice from the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Term Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which shall be in minimum increments of $1,000,000 and~~ each such increase, a ~~minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the~~ “~~Increased Amount Date~~Revolving Credit Commitment Increase”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment~~Amendment referred to below (i) all representations and warranties in Article V shall be true and correct in all material respects (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date and except to the extent that a particular representation or warranty is already qualified by materiality, in which case such representation or warranty shall be true and correct), (ii) no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) would result therefrom and (iii) the aggregate principal amount of all Revolving Credit Commitment Increases shall not exceed $50,000,000. (b) Each Revolving Credit Commitment Increase shall be in an aggregate principal amount that is a whole multiple of $500,000 which is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.08(a)(iii) above). (c) The Revolving Credit Loans made pursuant to the Revolving Credit Commitment Increases (a) shall be made under and documented in this Agreement or pursuant to an amendment hereto and shall rank pari passu in right of payment and of security with the Revolving Credit Loans and (b) shall be treated substantially the same as or less favorably than the Revolving Credit Loans (including with respect to mandatory and voluntary prepayments and voting rights). (d) Each notice from the Borrowers pursuant to this Section 2.08 shall set forth the requested amount and proposed terms of the relevant Revolving Credit Commitment Increases. Revolving Credit Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution selected by the Borrowers (any such bank or other financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent consented (not to be unreasonably withheld) ~~and furnished~~ to such Lender’s or Additional Lender’s providing any such Revolving Credit Commitment Increases if such consent would be required under Section 11.06 for an assignment of Commitments to such Lender or Additional Lender. Revolving Credit Commitments in respect of Revolving Credit Commitment Increases shall become Revolving Credit Commitments (or in the case of a Revolving Credit Commitment Increase to be provided by an existing Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other ~~parties hereto. (d)~~ Loan Documents, executed by Holdings, the Borrowers, each Lender agreeing to provide such Revolving Credit Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of ~~Parent Borrower, or~~ any other ~~Loan Party, Agent or~~ Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower~~Borrowers, to effect the provisions of this Section ~~2.8~~2.08. The ~~applicable~~ effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 and such other conditions as the parties thereto shall agree. The Borrowers will use the proceeds of the ~~Incremental Term Loans~~ Revolving Credit Commitment Increases for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any ~~Incremental Term Loans~~ Revolving Credit Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.08, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Credit Commitment Increase (each, a “Revolving Credit Commitment Increase Lender”) in respect of such increase, and each such Revolving Credit Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Credit Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, the Lenders (including the Additional Lenders) shall make such payments as directed by the Administrative Agent in order that the Revolving Credit Loans are held by the Lenders (including Additional Lenders) ratably in accordance with the increased Revolving Credit Commitments (and interest and other payments shall be adjusted accordingly). (e) The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.08. (f) This Section ~~2.8~~ 2.08 shall supersede any provisions in Section ~~2.7~~ 2.14, 2.15 or ~~12.3~~ 11.01 to the contrary.

Appears in 3 contracts

Samples: Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.), Credit Agreement (Leslie's, Inc.)

Incremental Credit Extensions. (a) One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to time after the Escrow Release Date, request Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; ~~provided~~ provided, further that, with respect to any Protected Incremental Term ~~Loans~~LoansLoan, if the Effective Yield in respect of any such Protected Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 2550 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Protected Incremental Term Loan is no more than 25 2550 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Protected Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans), shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 2 contracts

Samples: Term Loan Agreement (Albertsons Companies, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)

Incremental Credit Extensions. (a) ~~One~~ The Parent Borrower may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ (a) one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Term Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which shall be in minimum increments of $1,000,000 and~~ each such increase, a ~~minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the~~ “~~Increased Amount Date~~Revolving Commitment Increase”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment~~Amendment referred to below, no Default or Event of Default shall ~~exist~~ exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a amount of $100,000,000 (provided that such amount may be less than a amount of $100,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed $750,000,000 (such amount, the "Incremental Amount”). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and at proposed terms of the ~~time~~ relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided, by any existing Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Term~~ Amendment”) to this Agreement and, as appropriate, the other Loan ~~is made (~~Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and ~~after giving~~ the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, effect ~~thereto) no Event~~ such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of ~~Default~~ the Administrative Agent and the Parent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be ~~continuing; (ii) after giving effect~~ subject to ~~such Incremental Term Loan Commitments,~~ the satisfaction on the date thereof of each of the conditions of set forth in Section ~~4.2(a) shall be satisfied~~ 4.02 (it being understood that all references to “the date of ~~the making of~~ such ~~Loan~~Credit Extension” or similar language in such Section ~~4.2(a)~~ 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) ~~(except, to~~ and such other conditions as the ~~extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations~~ parties thereto shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agentagree. The ~~Agent~~ Parent Borrower shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the ~~Incremental Term Loans~~ Revolving Commitment Increases for any purpose not prohibited by this Agreement; provided that to the extent the proceeds of Revolving Commitment Increases are being used to refinance Retained Existing Notes, such refinancing occurs no earlier than the final maturity date of such Retained Existing Notes. ~~Incremental Term Loans may~~ Upon each increase in (A) the Revolving Credit Commitments pursuant to this Section 2.14, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be ~~made by any existing~~ deemed to have assigned to each Lender ~~(but each existing Lender will not have an obligation to make~~ providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any ~~Incremental Term Loan)~~ Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the~~ Lender in accordance with Section 3.05. The Administrative Agent and the ~~Parent Borrower. No Lender~~ Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~be obligated~~ not apply to ~~provide any Incremental Term Loans unless it so agrees.~~ the transactions effected pursuant to the immediately preceding sentence. (b) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (CC Media Holdings Inc), Credit Agreement (C C Media Holdings Inc)

Appears in 2 contracts

Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ Parent may, at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ (a) one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective term loans (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments~~ ) or ~~prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise.~~ (b) ~~The applicable Borrowers and each Incremental Term Lender shall execute and deliver to~~ one or more increases in the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms amount of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date Revolving Credit Commitments of any ~~Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time~~ Facility (each such ~~Incremental Term Loans are established~~increase, ~~and~~a “Revolving Commitment Increase”); provided, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment, no Event of Default shall exist~~ Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall ~~be continuing;~~ exist and (ii) ~~after giving effect~~ Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to ~~such~~ Section 6.01. Each tranche of Incremental Term ~~Loan Commitments~~Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the ~~conditions~~ aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section ~~4.2(a~~2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be ~~satisfied~~ entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood ~~that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Xxxxxx’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are ~~to be used to finance an Acquisition~~any Revolving Credit Loans under the applicable Facility outstanding, such ~~representations~~ Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be ~~limited~~ accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~Specified Representations and Specified~~ transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition ~~Agreement Representations~~may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) ~~and~~ The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (~~iii~~i) ~~the Agent shall have received~~ customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ~~Original~~ Closing Date ~~other than changes to such legal opinion resulting from a change in law~~(conformed as appropriate, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary including to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans ~~unless it so agrees.~~ provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)

Incremental Credit Extensions. (a) One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to time after the Escrow Release Date, request Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to (i) make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or ~~otherwise~~otherwise or (ii) make Investments in (or otherwise purchase) the Equity Interests of NAI. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section ~~4.2 and Section 14.13(e)~~4.2, no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be ~~continuing~~continuing (except to the extent the proceeds of the Incremental Term Loans are to be used to finance a Designated Acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 8.1(a) or (f) shall be continuing at the time of making such acquisition)); (ii) after giving effect to such Incremental ~~Term Loan~~ Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an a Designated Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 2 contracts

Samples: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)

Incremental Credit Extensions. (a) ~~One~~ The Borrower may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Term Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which shall be in minimum increments of $1,000,000 and~~ each such increase, a ~~minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the~~ “~~Increased Amount Date~~Revolving Commitment Increase”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Additional Credit Extension Amendment referred to below (an “Incremental ~~Amendment~~Effective Date”), no Default or Event of Default shall ~~exist~~ exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, (x) the aggregate amount of Revolving Credit Commitments after giving effect to any Revolving Commitment Increase (and at any concurrent reduction in the ~~time that any such Incremental Term Loan is made~~ Revolving Credit Commitments) shall not exceed the Revolving Credit Commitment Cap, and (y) on a Pro Forma Basis and after giving effect ~~thereto) no Event~~ to the borrowing of ~~Default~~ all such Revolving Commitment Increases (assuming for such calculation that any Revolving Commitment Increases are fully drawn), the Senior Secured Net Leverage Ratio for the most recently ended Test Period shall be ~~continuing; (ii) after giving effect~~ less than or equal to ~~such Incremental Term Loan Commitments,~~ 3.75 to 1.0. Each notice from the ~~conditions of~~ Borrower pursuant to this Section ~~4.2(a)~~ shall ~~be satisfied (it being understood that all references to “~~set forth the ~~date~~ requested amount and proposed terms of the ~~making of~~ relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender or by any other bank or other financial institution approved by the Borrower (any such ~~Loan”~~ other bank or ~~similar language in such Section 4.2(a) shall be deemed to refer to~~ other financial institution being called an “Additional Lender”), provided that each L/C Issuer and the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Administrative Agent shall have ~~received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to~~ consented (such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Revolving Credit Commitments to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an Additional Credit Extension Amendment, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, the applicable L/C Issuer (in the case of an increase of a Revolving Commitment Increase) and ~~furnished to~~ the ~~other parties hereto. (d)~~ Administrative Agent. The ~~Incremental~~ Additional Credit Extension Amendment may, without the consent of ~~Parent Borrower, or~~ any other ~~Loan Party, Agent or~~ Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent~~ Borrower, to effect the provisions of this ~~Section 2.8~~Section. The ~~applicable Borrowers~~ effectiveness of any Additional Credit Extension Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Additional Credit Extension Amendment) and such other conditions as the parties thereto shall agree. The Borrower will use the proceeds of the ~~Incremental Term Loans~~ Revolving Commitment Increases and Letters of Credit issued pursuant to the Revolving Commitment Increases for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any ~~Incremental Term Loans~~ Revolving Commitment Increases, unless it so agrees. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal its Pro Rata Share and (b) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. (b) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Revolving Credit Agreement (IASIS Healthcare LLC), Revolving Credit Agreement (IASIS Healthcare LLC)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ Parent may, at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ (a) one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective term loans (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments~~ ) or ~~prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise.~~ (b) ~~The applicable Borrowers and each Incremental Term Lender shall execute and deliver to~~ one or more increases in the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms amount of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date Revolving Credit Commitments of any ~~Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time~~ Facility (each such ~~Incremental Term Loans are established~~increase, ~~and~~a “Revolving Commitment Increase”); provided, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment, no Event of Default shall exist~~ Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall ~~be continuing;~~ exist and (ii) ~~after giving effect~~ Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to ~~such~~ Section 6.01. Each tranche of Incremental Term ~~Loan Commitments~~Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the ~~conditions~~ aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section ~~4.2(a~~2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be ~~satisfied~~ entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for the Incremental Term Loans shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Facility (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood ~~that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ to the extent that any financial maintenance covenant is added for the benefit of any Incremental Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are ~~to be used to finance an Acquisition~~any Revolving Credit Loans under the applicable Facility outstanding, such ~~representations~~ Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be ~~limited~~ accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~Specified Representations and Specified~~ transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition ~~Agreement Representations~~may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) ~~and~~ The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (~~iii~~i) ~~the Agent shall have received~~ customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ~~Original~~ Closing Date ~~other than changes to such legal opinion resulting from a change in law~~(conformed as appropriate, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary including to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans ~~unless it so agrees.~~ provided on a “certain funds” basis) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Incremental Credit Increase is provided with the benefit of the applicable Loan Documents. (g) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Outfront Media Minnesota LLC), Credit Agreement (CBS Outdoor Americas Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ The Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to ~~time after the Escrow Release Date~~time, request Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term ~~Loans~~Loans and/or Incremental Revolving Credit Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”), and (iii) (a) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“~~Incremental~~ Other Term Loans”~~). The proceeds of any~~ ) and/or (b) whether such Incremental ~~Term Loans shall not~~ Revolving Credit Commitments are to be ~~used~~ Revolving Credit Commitments or commitments to make ~~Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~revolving loans with pricing and/or amortization terms and/or maturity and/or other terms different from the Revolving Credit Loans (“Other Revolving Loans”). (b) The ~~applicable Borrowers~~ Borrower and each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term ~~Loans~~Loans and/or Incremental Revolving Credit Commitments; ~~provided~~ provided, that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the ~~applicable Borrowers~~ Borrower and the Incremental Term Lenders in their sole discretion), the ~~Incremental~~ Other Term Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the ~~Term Lenders holding~~ same terms as the ~~Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing~~ Term Loans or (zy) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any ~~Incremental~~ Other Term Loans shall be no earlier than the ~~Latest~~ Maturity Date at of the ~~time such Incremental~~ Term ~~Loans are established, and~~Loans, (iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans, (iv) except as to pricing, amortization and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Credit Lenders in their sole discretion), the Other Revolving Loans shall have (x) the same terms as the Revolving Credit Facility or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent and (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Maturity Date of the Revolving Credit Facility; provided further ~~that, with respect~~ that the interest rate margin (which shall be deemed to ~~any Incremental~~ include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term ~~Loans, if~~ Loan and/or Other Revolving Loan in the ~~Effective Yield~~ initial primary syndication thereof but exclude customary arranger and underwriting fees) in respect of any ~~such Incremental~~ Other Term Loan ~~exceeds~~ and/or Other Revolving Loan shall be the same as that applicable to the Term Loans and/or the Revolving Credit Loans, as applicable; except that the interest rate margin in respect of any Other Term Loan and/or Other Revolving Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term Loan and/or Other Revolving Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees) may exceed the Applicable ~~Margin of any~~ Rate for the Term B Loans and/or the Revolving Credit Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term Loans and/or the Revolving Credit Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees), respectively, by no more than 25 basis ~~points~~points (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Rate (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term Loans and/or the Revolving Credit Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees), such Applicable ~~Margin~~ Rate shall be increased so that the ~~Effective Yield~~ interest rate margin in respect of such ~~Incremental~~ Other Term Loan or Other Revolving Loan, as the case may be (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term Loan and/or Other Revolving Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees), is no more than 25 basis points higher than the ~~Effective Yield~~ Applicable Rate for the Term Loans or the Revolving Credit Loans, respectively (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term B Loans and/or the Revolving Credit Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees) and if the lowest permissible ~~Eurodollar~~ Eurocurrency Rate is greater than ~~1.00~~1.75% or the lowest permissible Base Rate is greater than ~~2.00~~2.75% for such ~~Incremental~~ Other Term Loan or Other Revolving Loan, the difference between such “floor” and ~~1.00~~1.75% in the case of ~~Eurodollar~~ Eurocurrency Rate Incremental ~~Term Loans (~~Loans, or ~~2.00~~2.75% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of the this proviso. . (c) The Incremental Term Loans or Incremental Revolving Credit Commitments shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Term B Loans and Revolving Credit Loans; provided that, if such Incremental Term Loans or Incremental Revolving Credit Commitments rank junior in right of security with the Term Loans or Revolving Credit Loans, such Incremental Term Loan or Incremental Revolving Credit Commitments will be established as a separate facility from the Terms Loans or Revolving Credit Facility, respectively. In the case of any second lien Incremental Term Loans, such Indebtedness (x) shall be subject to restrictions on voluntary prepayments as contemplated under Section 7.12, (y) shall be subject to a Second Lien Intercreditor Agreement and (z) shall not be subject to the second proviso in clause (b) above. (cd) Notwithstanding the foregoing, ~~but subject to the last paragraph of Section 4.2 and Section 14.13(e),~~ no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section ~~2.8~~ 2.14 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan or Incremental Revolving Credit Commitment is made (and after giving effect thereto) no Event of Default shall ~~be continuing;~~ exist, (ii) ~~after giving effect to such Incremental Term Loan Commitments,~~ the ~~conditions of Section 4.2(a)~~ Borrower shall be ~~satisfied~~ in compliance with the covenants set forth in Sections 7.10(a) and (~~it being understood that all references to “~~b) determined on a Pro Forma Basis as of the date of the ~~making of~~ most recently ended Test Period as if such ~~Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the~~ Incremental Term Loans ~~are to be used to finance an Acquisition~~or any borrowing under any such Incremental Revolving Credit Commitment, as applicable, had been outstanding on the last day of such ~~representations shall be limited to~~ fiscal quarter of the ~~Specified Representations and Specified Acquisition Agreement Representations)~~ Borrower for testing compliance therewith and (iii) the ~~Agent~~ Secured Leverage Ratio shall ~~have received customary legal opinions~~not be greater than 2.75 to 1.0 determined on a Pro Forma Basis as of the last four quarters ended as if such Incremental Term Loans or any borrowings under any such Incremental Revolving Credit Commitment, ~~board resolutions and officers’ certificates consistent with those delivered~~ as applicable, had been outstanding on the ~~Original Closing Date other than changes to~~ last day of such ~~legal opinion resulting from a change in law, change in fact or change to counsel’s form~~ fiscal quarter of ~~opinion reasonably satisfactory to~~ the ~~Agent~~Borrower for testing compliance therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (de) The Incremental Amendment may, without the consent of ~~Parent~~ Borrower, or any other Loan Party, ~~Agent~~ Agents or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent~~ Borrower, to effect the provisions of this Section ~~2.8~~2.14. The ~~applicable Borrowers~~ Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Loans for any purpose not prohibited by this Agreement. Incremental Term Loans and Incremental Revolving Credit Commitments may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Credit Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution other than the existing Lenders providing Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Administrative Agent and the ~~Parent~~ Borrower. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. . (f) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Delta Tucker Holdings, Inc.), Credit Agreement (Phoenix Consulting Group, LLC)

Incremental Credit Extensions. (a) ~~One or more Borrowers~~ (~~which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested~~i) ~~may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders)~~ At any time and from time to time after the ~~Escrow Release~~ Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available such notice to each of the Lenders), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not~~ to ~~exceed the Incremental Amount from~~ effect one or more ~~Incremental Term Lenders~~ revolving credit facility tranches (~~which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount~~ or an increase of the ~~Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii~~commitments thereunder) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental ~~Term Loans~~Revolving Facilities”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b~~) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loansfrom Additional Revolving Lenders; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of ~~any~~ each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) no Default shall have occurred and be continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period), (D) such Incremental Revolving Facility may be secured on a pari passu basis with the Loans, (E) the interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental ~~Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default~~ Revolving Facility shall be ~~continuing;~~ determined by the Borrower and the lenders thereunder, (iiF) ~~after giving effect~~ any Incremental Revolving Facility Amendment shall be on the terms and pursuant to ~~such~~ documentation to be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental ~~Term Loan Commitments~~Revolving Facilities and (G) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the Administrative Agent, the ~~conditions of Section 4.2(a) shall be satisfied (it being understood~~ Borrower and the Additional Revolving Lenders; provided that ~~all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ to the extent ~~the proceeds of the Incremental Term Loans~~ such terms and documentation are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates not consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement ~~shall be amended~~ (except to the extent permitted by clause (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term LoanE) or ~~by any other bank or other financial institution; provided that any such bank or financial institution~~ (G) above), they shall be reasonably satisfactory to the ~~Agent and the Parent Borrower~~Administrative Agent. ~~No Lender~~ Each Incremental Revolving Facility shall be ~~obligated to provide any~~ in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the Incremental ~~Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary~~Cap.

Appears in 2 contracts

Samples: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ Any Borrower, may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in an aggregate amount not to exceed (when aggregated with any Incremental Equivalent Debt) the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender, but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term ~~Loans~~Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion. ~~Such~~ Each notice provided pursuant to this Section 2.20 shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $~~1,000,000~~ 10,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become ~~effective (the “Increased Amount Date”)~~effective, ~~and~~ (iii) in the case of Incremental Revolving Commitments, whether such Incremental Revolving Commitments are to constitute an increase to the Dollar Tranche Commitments or Multicurrency Tranche Commitments; provided that, where multiple Classes of Revolving Commitments exist with different Maturity Dates, any Incremental Revolving Commitments shall constitute and increase to the Class of Revolving Commitments with the Latest Maturity Date; provided, further that the aggregate amount of all Incremental Revolving Commitments established hereunder shall not exceed $100,000,000 and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to be make term loans with the same interest rates, amortization, maturity and other terms as the Initial Term ~~Commitments~~ Loans made on the Effective Date or commitments to make term loans with ~~interests~~ interest rates and/or amortization and/or maturity and/or other terms different from the Initial Term B Loans (“~~Incremental~~ Other Term Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~. (b) [reserved]. (c) The applicable ~~Borrowers~~ Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such customary other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment providing for Incremental Term Loans shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, ~~amortization~~ amortization, mandatory prepayments and final maturity date (which shall, subject to clause (ii), (iii) and (~~iii~~iv) of this proviso, be determined by ~~the applicable Borrowers~~ such Borrower and the Incremental Term Lenders in their sole discretion), the ~~Incremental~~ Other Term Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the ~~Term Lenders holding~~ same terms as the ~~Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing~~ Initial Term Loans or (zy) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any ~~Incremental~~ Other Term ~~Loans~~ Loan shall be no earlier than the Latest Maturity Date ~~at the time such Incremental~~ with respect to then-existing Term Loans ~~are established, and~~(except for Other Term Loans incurred pursuant to the Inside Maturity Basket), (iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term B Loans with the Latest Maturity Date (except for Other Term Loans incurred pursuant to the Inside Maturity Basket), (iv) the prepayment provisions of any Other Term Loans shall not be more favorable than the prepayment provisions applicable to the Initial Term Loans that will remain outstanding after giving effect to the incurrence of such Other Term Loans and use of proceeds thereof and (v) the Effective Yield of any Other Term Loans may exceed the Effective Yield then applicable to the Initial Term Loans; provided ~~further that, with respect to any Incremental Term Loans, if~~ that the Effective Yield ~~in respect of any such Incremental~~ for the Initial Term ~~Loan exceeds the Applicable Margin of any Term B~~ Loans ~~by more than 25 basis points, such Applicable Margin~~ shall be increased to the extent necessary (without any further action by any party or any amendment hereto) so that the Effective Yield ~~in respect of~~ for such ~~Incremental~~ Initial Term ~~Loan~~ Loans is ~~no more than 25 basis points higher~~ not less than the Effective Yield ~~for~~ of any such Other Term B Loans minus 0.50%; provided, however that the foregoing proviso (x) shall only be effective until the date that is twelve months after the Effective Date, (y) shall not apply to any Other Term Loans or Incremental Equivalent Debt incurred in reliance on the Incremental Ratio Basket and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental (z) shall not apply to any Other Term Loans (or ~~2.00% in~~ Incremental Equivalent Debt) with a final maturity date at least 24 months after the ~~case of Base Rate Incremental~~ Maturity Date then applicable to the Initial Term Loans and a Weighted Average Life to Maturity longer by 24 months or more than the Weighted Average Life to Maturity then applicable to the Initial Term Loans~~, shall be equated to interest rate margin for purposes of this proviso~~. The Incremental Term Loans shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Initial Term B Loans and shall not be (x) secured by any property or assets of Parent or any Restricted Subsidiary other than the Collateral or (y) guaranteed by Parent or any of its Restricted Subsidiaries other than the Guarantors; provided that, if such Other Term Loans rank junior in right of security with the Initial Term Loans, such Other Term Loans will be established as a separate Tranche from the Initial Term Loans. In the case of any junior lien Incremental Term Loans, such Indebtedness shall be subject to the terms of an Approved Intercreditor Agreement. (cd) The Borrower and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other customary documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Any Incremental Revolving Commitment established hereunder shall have terms identical to (and shall form part of) such Class of Revolving Commitments with the Latest Maturity Date existing on the Effective Date, it being understood that the Borrower and the Administrative Agent may make (without the consent of or notice to any other party) any amendment to reflect such increase in the Revolving Commitments. (e) Notwithstanding the foregoing, ~~but subject to the last paragraph of Section 4.2 and Section 14.13(e),~~ no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section ~~2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment~~2.20 unless, ~~no Event of Default shall exist and~~ subject to Section 1.04, at the time that any such Incremental Term Loan or Incremental Revolving Commitment is made (and after giving effect thereto), (A) no Event of Default shall ~~be continuing; (ii)~~ exist or would exist after giving effect thereto (including on a pro forma basis) and (B) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term ~~Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references~~ Loans is used to ~~“the date of the making of such Loan”~~ finance an acquisition or ~~similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ other Investment permitted by this Agreement and to the extent the ~~proceeds~~ Incremental Term Lenders participating in such tranche of ~~the~~ Incremental Term Loans ~~are to be used to finance an Acquisition~~agree, ~~such representations~~ the foregoing clause (B) shall be limited to customary “specified representations” and those representations included in the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes agreement related to such ~~legal opinion resulting from a change in law, change in fact~~ acquisition or ~~change to counsel’s form of opinion reasonably satisfactory~~ other Investment that are material to the ~~Agent~~interests of the Lenders and only to the extent that Parent or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the ~~applicable~~ Borrower’s consent (not to be unreasonably withheld, delayed or conditioned) and furnished to the other parties hereto. Each Incremental Amendment shall be delivered to the Administrative Agent, together with such documents (including local law confirmations as to Collateral) and legal opinions substantially consistent with those delivered on the Effective Date (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion) as to such matters as are reasonably requested by the Administrative Agent. (df) The Incremental Amendment may, without the consent of ~~Parent Borrower~~the Administrative Agent, ~~or any other Loan Party,~~ the Collateral Agent or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent~~ Borrower, to effect the provisions of this Section ~~2.8~~2.20, including those required by the Incremental Term Loan Lenders or Incremental Revolving Lenders, as applicable (and not adverse to any existing Lender after giving effect to the Incremental Loans made pursuant to such amendment). The ~~applicable Borrowers~~ Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Loans for ~~any purpose not prohibited by this Agreement~~their general corporate purposes (including loans and other Investments in Parent and its Subsidiaries as permitted herein). Incremental Term Loans and Incremental Revolving Commitments may be made by any existing Lender (but ~~each~~ no existing Lender will ~~not~~ have an any obligation to make a or provide any portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution (including any new or existing Lenders) providing Incremental Revolving Commitments shall be reasonably satisfactory to the ~~Agent~~ Administrative Agent, each Issuing Bank and the ~~Parent~~ Borrower. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. . (g) This Section ~~2.8~~ 2.20 shall supersede any provisions in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.02 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Endo, Inc.), Credit Agreement (Endo, Inc.)

Incremental Credit Extensions. (a) ~~One~~ The Borrower may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more additional tranches of term loans to be made hereunder (each, an “Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount DateFacility”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment~~Amendment referred to below, (i) no Default or Event of Default shall exist or would arise therefrom, (ii) each Incremental Facility shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), and (iii) the aggregate amount of any Incremental Facility, when taken together with all other Incremental Facilities to date, shall not exceed the sum of (A) $50,000,000 plus (B) the amount available at the time ~~that~~ of incurrence so long as, on a Pro Forma Basis after giving effect to the incurrence of all Indebtedness under any such Incremental ~~Term Loan~~ Facility, the Consolidated Secured Net Leverage Ratio is less than or equal to 2.75 to 1.00. The Administrative Agent and the Borrower shall determine the effective date of such Incremental Facility and any such Incremental Facility shall be first made available to all existing Lenders on a pro rata basis. To the extent that the existing Lenders in a timely fashion relative to the Incremental Facility Closing Date (as defined below) decline to issue commitments in respect of such Incremental Facility in the amount requested by the Borrower, the Administrative Agent, in consultation with the Borrower, will use its reasonable best efforts to arrange for other Persons (which Person may be suggested by the Borrower) to become a Lender hereunder and ~~after giving effect thereto~~to issue commitments in an aggregate amount equal to the amount of the Incremental Facility requested by the Borrower for which the existing Lenders decline to issue commitments (each Person issuing a commitment under an Incremental Facility, an “Additional Lender”), provided, however, that (i) no ~~Event of Default~~ Lender shall be ~~continuing;~~ obligated to provide a commitment in respect of such Incremental Facility as a result of any such request by the Borrower, (ii) any Additional Lender which is not an existing Lender shall be subject to the approval of the Administrative Agent and the Borrower (which approval shall not be unreasonably withheld), and (iii) without the consent of the Administrative Agent, at no time shall the commitment of any Additional Lender in respect of such Incremental Facility be less than $5,000,000. The term loans made under such Incremental Facility (“Incremental Term Loans”) (a) shall rank pari passu in right of payment and of security with the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall be treated the same as the Term Loans (in each case, including with respect to mandatory and voluntary prepayments), (d) the yield (including, for the avoidance of doubt, any upfront fees, original issue discount and similar amounts paid to Lenders under the Incremental Facility) on the Incremental Term Loans shall not exceed the corresponding interest rate on the Term Loans by more than 25 basis points (it being understood that this condition may be satisfied by including a provision in the respective Incremental Amendment in respect of such Incremental Term Loans pursuant to which the Applicable Margin in respect of the Term Loans is increased to the extent necessary to reduce any such excess to no more than 25 basis points) and (e) the amortization schedule applicable to the Incremental Term Loans shall provide for a Weighted Average Life to Maturity of the Incremental Term Loans no shorter than the Weighted Average Life to Maturity of the Term Loans. Each notice from the Borrower pursuant to this Section shall set forth the requested amount and proposed terms of the requested Incremental Facility. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Additional Lender and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be mutually agreed by the Administrative Agent and the Borrower to effect the provisions of this Section. The Administrative Agent and the Lenders hereby agree that the pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The provisions of this SECTION 2.02 shall supersede any provisions in SECTION 2.21 or 9.02 to the contrary. (b) No Incremental Amendment shall become effective unless and until each of the following conditions has been satisfied or waived: (i) All representations and warranties contained in this Agreement and the other Loan Documents or otherwise made in writing in connection herewith or therewith shall be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as if made on and as of such date, other than representations and warranties that relate solely to an earlier date (it being understood and agreed that the Borrower’s maintenance of its Incremental Facility request shall be deemed a representation and warranty by the Loan Parties to all Lenders and all Additional Lenders that the condition specified in this subclause (i) is satisfied as of the Incremental Facility Closing Date); (ii) The Loan Parties shall have demonstrated, to the reasonable satisfaction of the Administrative Agent, that both before and after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Amendment and any Incremental Term Loans ~~are to be used to finance an Acquisition~~and Investments made in connection therewith, ~~such representations~~ Holdings shall be ~~limited to~~ in compliance with SECTION 6.11(a) on a Pro Forma Basis, as of the ~~Specified Representations and Specified Acquisition Agreement Representations) and~~ last day of the then most recently ended Fiscal Quarter; (iii) The Borrower, Administrative Agent, and each Additional Lender shall have executed and delivered the Incremental Amendment and such other amendments to the Loan Documents as the Administrative Agent shall reasonably require; (iv) The Borrower shall have ~~received customary legal~~ paid such fees and other compensation to the Additional Lenders and to the Administrative Agent as the Borrower, such Additional Lenders and the Administrative Agent shall agree; (v) The Borrower shall deliver to the Administrative Agent and the Lenders an opinion or opinions, ~~board resolutions~~ in form and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion substance reasonably satisfactory to the Administrative Agent. , from counsel to the Borrowers and dated such date; (vi) A promissory note (to the extent requested) will be issued at the Borrower’s expense, to each such Additional Lender, to be in conformity with requirements of SECTION 2.07 (with appropriate modification); and (vii) The Borrower and each Additional Lender shall have delivered such other instruments, documents and agreements as the Administrative Agent may reasonably have requested in order to effectuate the documentation of the foregoing. (c) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Amendment. Each~~ Amendment (with each date of ~~the parties hereto hereby agrees that, upon the~~ such effectiveness ~~of any~~ being referred to herein as an “Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoFacility Closing Date”). (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (Music123, Inc.), Credit Agreement (Music123, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ Parent may, at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ (a) one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective term loans (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments~~ ) or ~~prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise.~~ (b) ~~The applicable Borrowers and each Incremental Term Lender shall execute and deliver to~~ one or more increases in the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms amount of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date Revolving Credit Commitments of any ~~Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time~~ Facility (each such ~~Incremental Term Loans are established~~increase, ~~and~~a “Revolving Commitment Increase”); provided, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment, no Event of Default shall exist~~ Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), (i) no Default or Event of Default shall ~~be continuing;~~ exist and (ii) ~~after giving effect~~ Parent shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered pursuant to ~~such~~ Section 6.01. Each tranche of Incremental Term ~~Loan Commitments~~Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the ~~conditions~~ aggregate amount of the Incremental Term Loans and the Revolving Commitment Increases (other than, for the avoidance of doubt, those established in respect of Extended Term Loans or Extended Revolving Credit Commitments pursuant to Section ~~4.2(a~~2.16) shall not exceed the Maximum Incremental Facilities Amount. (b) Any Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Credit Facility (including the maturity date in respect thereof but excluding up-front commitment or similar fees); provided, the Applicable Rate with respect to the Revolving Credit Facility may be increased if necessary to be consistent with that required by the lenders providing the Revolving Commitment Increase. The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the Revolving Credit Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date with respect to the Term Loans, (c) shall not have a shorter Weighted Average Life to Maturity than the remaining Weighted Average Life to Maturity of the Term Loans, (d) shall be ~~satisfied~~ entitled to share in mandatory and voluntary prepayments on a ratable (or less than ratable, but in no event greater than ratable) basis with the Term Loans, and (e) shall bear interest at rates and be entitled to upfront fees as shall be determined by Parent and the applicable new Lenders; provided, however, that if the All-In Yield for Incremental Term Loans that are incurred under this Section 2.14 on a date that is prior to the twelve (12) month anniversary of the Amendment No. 2 Effective Date, shall exceed the All-In Yield with respect to the Term Loans by more than 50 basis points, then the interest rate margins applicable to the Term Loans shall be increased so that such excess shall be only 50 basis points. The Incremental Term Loans shall otherwise be on terms and pursuant to documentation to be determined by Parent; provided that, to the extent such terms and documentation are not consistent with the Term Loans (except to the extent permitted by clauses (a) through (e) above), they shall be reasonably satisfactory to the Administrative Agent (it being understood ~~that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Loan or Revolving Commitment Increase, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant is also added for the benefit of any corresponding existing Term Loans) and subject to clauses (b) and (c) above, the amortization schedule (if any) applicable to the Incremental Term Loans shall be determined by Parent and the lenders thereof. (c) Each notice from Parent pursuant to this Section 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided, that the Administrative Agent, each Swing Line Lender and each L/C Issuer shall have consented (not to be unreasonably withheld) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.06(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the applicable Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall, without the consent of the Agents or the Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and Parent to effect the provisions of this Section 2.14, including without limitation to incorporate the applicable lenders in respect of Incremental Term Loans as “Lenders”, and the Incremental Term Loans as “Loans” and/or “Term Loans”, for all applicable purposes hereunder, including the definition of Required Lenders and to establish any tranche of Incremental Term Loans as an independent Class or Facility, as applicable. The effectiveness of any Incremental Amendment shall be subject to such further conditions as Parent and the applicable Lenders and Additional Lenders shall agree. The Borrowers may use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans or Revolving Commitment Increases, unless it so agrees. (d) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed (in the case of an increase to the Revolving Credit Facility only), a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are ~~to be used to finance an Acquisition~~any Revolving Credit Loans under the applicable Facility outstanding, such ~~representations~~ Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans under the applicable Facility made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be ~~limited~~ accompanied by accrued interest on the Revolving Credit Loans being prepaid and any reasonable and documented out-of-pocket costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the ~~Specified Representations and Specified~~ transactions effected pursuant to the immediately preceding sentence. (e) Notwithstanding anything to the contrary in this Section 2.14 or in Article IV or otherwise in this Agreement, so long as no Event of Default has occurred pursuant to Section 8.01(a) or (f), the lenders providing any Incremental Term Loans in connection with a Permitted Acquisition ~~Agreement Representations~~may agree to modify the conditionality with respect to such Incremental Term Loans such that the Permitted Acquisition may be consummated on a “certain funds” basis. (f) ~~and~~ The effectiveness of any Incremental Amendment shall be subject to, if requested by the Administrative Agent, receipt by the Administrative Agent of (~~iii~~i) ~~the Agent shall have received~~ customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ~~Original~~ Closing Date ~~other than changes to such legal opinion resulting from a change in law~~(conformed as appropriate, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary including to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans ~~unless it so agrees.~~ provided on a “certain funds” basis), (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Term Loans or Revolving Commitment Increase is provided with the benefit of the applicable Loan Documents and (iii) subject to Section 2.14(e), a certificate of a Responsible Officer certifying that the representations and warranties contained in Article V and the other Loan Documents shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) on and as of the effective date of such Incremental Amendment, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, with respect to representations and warranties modified by a materiality or Material Adverse Effect standard, in all respects) as of such earlier date. (g) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 2 contracts

Samples: Credit Agreement (OUTFRONT Media Inc.), Credit Agreement (OUTFRONT Media Inc.)

Incremental Credit Extensions. (a) One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to time after the Escrow Release Date, request Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to (i) make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or ~~otherwise~~otherwise or (ii) make Investments in (or otherwise purchase) the Equity Interests of NAI. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section ~~4.2~~ 4.2,4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be ~~continuing~~continuing (except to the extent the proceeds of the Incremental Term Loans are to be used to finance a Designated Acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 8.1(a) or (f) shall be continuing at the time of making such acquisition)); (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an a Designatedan Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 2 contracts

Samples: Term Loan Agreement (Safeway Stores 42, Inc.), Term Loan Agreement (Albertsons Companies, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers~~ (~~which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested~~i) ~~may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders)~~ At any time and from time to time after the ~~Escrow Release~~ Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available such notice to each of the Lenders), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not~~ to ~~exceed the Incremental Amount from~~ effect one or more ~~Incremental Term Lenders~~ additional revolving credit facility tranches hereunder (~~which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount~~ or an increase of the ~~Incremental Term Loan~~ Revolving Commitments ~~being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii~~hereunder) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental ~~Term Loans~~Revolving Facilities”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b~~) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loansfrom Additional Revolving Lenders; provided that (iA) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of ~~any~~ each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, no Default shall have occurred and be continuing or shall result therefrom (or, in the case of the incurrence or provision of any Incremental ~~Amendment~~Revolving Facility in connection with a Limited Condition Acquisition, no Event of Default under Section 7.01(a), (b), (h) or (i) shall ~~exist~~ have occurred and at be continuing or shall result therefrom), (B) the ~~time that any~~ Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (A) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental ~~Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments~~Revolving Facility, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (excepttogether with, to the extent ~~the proceeds~~ utilizing clause (b) of the definition of “Incremental ~~Term Loans are~~ Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be ~~used to finance an Acquisition~~delivered by Section 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA or Consolidated Interest Expense, as applicable, for the relevant period), (C) such ~~representations~~ Incremental Revolving Facility (x) shall be ~~limited~~ secured solely by Collateral on a pari passu basis with or junior basis to the ~~Specified Representations and Specified Acquisition Agreement Representations) and~~ Initial Revolving Loans (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended provided that to the extent such Incremental Revolving Facility is secured by junior Liens, the applicable parties shall have entered into the Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (~~but only~~ y) shall not be guaranteed by any Persons other than Loan Parties, (D) except as set forth in clause (F) below, the interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental Revolving Facility shall be determined by the Borrower and the Additional Revolving Lenders providing such Incremental Revolving Facility, provided that no Incremental Revolving Facility shall mature prior to the ~~extent~~Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (E) ~~necessary to reflect the existence and terms of the~~ any Incremental ~~Term Loan Commitments evidenced thereby. Any such deemed amendment~~ Revolving Facility may be ~~memorialized~~ provided in ~~writing by~~ any currency as mutually agreed among the ~~Agent with~~ Administrative Agent, the ~~applicable Borrower’s consent~~ Borrower and the Additional Revolving Lenders, (~~not to~~ F) in the case of an increase in the Revolving Commitments hereunder, the maturity date of such increase in the Revolving Commitment shall be ~~unreasonably withheld) and furnished~~ the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the ~~other parties hereto. (d) The Incremental Amendment may, without~~ Revolving Maturity Date and shall be on the ~~consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments~~ same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the ~~other Financing Agreements as may~~ express requirements herein, any Incremental Revolving Facility Amendment shall be ~~necessary or appropriate, in~~ on the ~~reasonable opinion of~~ terms and pursuant to documentation to be determined by the ~~Agent~~ Borrower and the ~~Parent Borrower, to effect~~ Additional Revolving Lenders providing the ~~provisions of this Section 2.8. The~~ applicable ~~Borrowers will use the proceeds of the~~ Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institutionRevolving Facilities; provided that ~~any~~ to the extent such ~~bank~~ terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (D) or ~~financial institution~~ (E) above), they shall be reasonably satisfactory to the ~~Agent~~ Administrative Agent; provided, further, that no Issuing Bank shall be required to act as “issuing bank” and ~~the Parent Borrower. No~~ no Swingline Lender shall be ~~obligated~~ required to ~~provide~~ act as a “swingline lender” under any such Incremental ~~Term Loans unless it so agrees~~Revolving Facility without its written consent. ~~This Section 2.8~~ Each Incremental Revolving Facility shall ~~supersede any provisions~~ be in ~~Section 2.7 or 12.3 to~~ a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the ~~contrary~~remaining availability under the Incremental Cap.

Appears in 2 contracts

Samples: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)

Incremental Credit Extensions. ~~(a) One~~ 2.22.1. The Lead Borrower may, at any time, on one or more ~~Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by~~ occasions deliver a written ~~notice~~ request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) ~~from time~~ pursuant to ~~time after~~ an Incremental Revolving Facility Amendment to increase the ~~Escrow Release Date~~aggregate amount of Commitments of any existing Class of Commitments (any such increase, ~~request~~ an “Incremental ~~Term Loan Commitments~~Revolving Facility” and, ~~as applicable~~the loans thereunder, “Incremental Revolving Loans”) in an aggregate principal amount not to exceed the Incremental ~~Amount~~ Cap; provided that: 2.22.1.1. no Incremental Revolving Commitment may be less than $5.0 million; 2.22.1.2. except as separately agreed from ~~one or more~~ time to time between the Lead Borrower and any Lender, no Lender shall be obligated to provide any Incremental ~~Term Lenders (which~~Revolving Commitment, ~~in each case, may include any existing Lender) willing~~ and the determination to provide such commitments shall be within the sole and absolute discretion of such Lender; 2.22.1.3. no Incremental ~~Term Loans~~Revolving Facility or Incremental Revolving Loan (or the creation, provision or implementation thereof) shall require the approval of any existing Lender (other than in its capacity, if any, as a Lender providing all or part of any Incremental Revolving Commitment or Incremental Revolving Loan), the ~~case may be~~Administrative Agent (unless its rights and interests are adversely affected in any material respect) or any other agent or arranger; 2.22.1.4. the terms of each Incremental Revolving Facility will be substantially identical to those applicable to the Revolving Facility (other than with respect to any upfront fees, original issue discount or similar fees); 2.22.1.5. except as otherwise agreed by the lenders providing the relevant Incremental Revolving Facility in ~~their own discretion. Such notice~~ connection with any acquisition, investments and repayments, repurchases and redemptions of indebtedness not prohibited by the terms of this Agreement, (A) no Event of Default shall exist immediately prior to or after giving effect to such Incremental Revolving Facility and (B) the representations and warranties of the Loan Parties set forth ~~(i)~~ in this Agreement and the ~~amount~~ other Loan Documents shall be true and correct in all material respects on and as of the date of the initial Borrowing under such Incremental ~~Term Loan Commitments being requested (which~~ Revolving Facility with the same effect as though such representations and warranties had been made on and as of such date; provided that to the extent that any representation and warranty specifically refers to a given date or period, it shall be true and correct in ~~minimum increments~~ all material respects as of ~~$1,000,000~~ such date or for such period; provided, further, that any representation or warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and ~~a minimum amount of $25,000,000 or equal~~ correct (after giving effect to any qualification therein) in all respects on such respective dates; 2.22.1.6. the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental ~~Term Loans shall not~~ Revolving Facility may be used for working capital, general corporate purposes and any transaction or other purpose not prohibited by this Agreement; and 2.22.1. 7. at no time shall there be more than three (3) separate Maturity Dates in effect with respect to ~~make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~the Incremental Revolving Facilities and any other Additional Revolving Facility at any time. 2.22.2. Incremental Revolving Commitments may be provided by any existing Lender, or by any other lender (bother than any Disqualified Institution) ~~The applicable Borrowers~~ who would be permitted to become a Lender (including any required consents) under Section 9.05(b) (any such other lender being called an “Additional Revolving Lender”); provided that the Administrative Agent and ~~each~~ any Issuing Bank shall have consented (such consent not to be unreasonably withheld or delayed) to the relevant Additional Revolving Lender’s provision of Incremental ~~Term~~ Revolving Commitments if such consent would be required under Section 9.05(b) for an assignment of Revolving Loans to such Additional Revolving Lender. 2.22.3. Each Lender or Additional Revolving Lender providing a portion of any Incremental Revolving Commitment shall execute and deliver to the Administrative Agent and the Lead Borrower all such documentation (including the relevant Incremental Revolving Facility Amendment or an ~~Incremental Amendment and such~~ amendment to any other ~~documentation~~ Loan Document) as may be reasonably required by the Administrative Agent ~~shall reasonably specify~~ to evidence ~~the Incremental Term Loan Commitment of~~ and effectuate such Incremental ~~Term Lender~~Revolving Commitment. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to On the effective date of such Incremental ~~Amendment) (except~~Revolving Commitment, each Additional Revolving Lender shall become a Lender for all purposes in connection with this Agreement. 2.22.4. As a condition precedent to the ~~extent~~ effectiveness of any Incremental Revolving Facility or the ~~proceeds~~ making of any Incremental Revolving Loans, (i) upon its reasonable request, the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Administrative Agent shall have received customary ~~legal opinions~~written opinions of counsel, ~~board~~ as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the Administrative Agent shall have received, from each Additional Revolving Lender, an administrative questionnaire, in the form provided to such Additional Revolving Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from such Additional Revolving Lender, (iii) the Lenders shall have received all fees required to be paid in respect of such Incremental Revolving Facility or Incremental Revolving Loans and (iv) the Administrative Agent shall have received a certificate of the applicable Borrower signed by a Responsible Officer thereof: 2.22.4.1.1. certifying and attaching a copy of the resolutions adopted by the governing body of the applicable Borrower approving or consenting to such Incremental Revolving Facility or Incremental Revolving Loans, and 2.22.4.1.2. to the extent applicable, certifying that the condition set forth in clause (a)(v) above has been satisfied. (i) Each Lender of the applicable Class immediately prior to such increase will automatically and ~~officers~~without further act be deemed to have assigned to each relevant Incremental Revolving Lender, and each relevant Incremental Revolving Lender will automatically and without further act be deemed to have assumed a portion of such Xxxxxx’s participations hereunder in outstanding US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, such that, after giving effect to each deemed assignment and assumption of participations, all of the Lenders’ ~~certificates consistent with those delivered~~ (including each Incremental Revolving Lender) participations hereunder in US Letters of Credit and/or Canadian Letters of Credit and Swingline Loans, as applicable, shall be held on a pro rata basis on the ~~Original Closing Date~~ basis of their respective Commitments of the applicable class (after giving effect to any increase in the Commitment pursuant to Section 2.22) and (ii) the existing Lenders of the applicable Class shall assign Revolving Loans to certain other ~~than changes to~~ Lenders of such ~~legal opinion resulting from a change~~ Class (including the Lenders providing the relevant Incremental Revolving Facility), and such other Lenders (including the Lenders providing the relevant Incremental Revolving Facility) shall purchase such Revolving Loans, in ~~law, change in fact or change to counsel’s form of opinion reasonably satisfactory~~ each case to the ~~Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each~~ extent necessary so that all of the ~~parties hereto hereby agrees that~~Lenders of such Class participate in each outstanding borrowing of Revolving Loans pro rata on the basis of their respective Commitments of such Class (after giving effect to any increase in the Commitment pursuant to this Section 2.22); it being understood and agreed that the minimum borrowing, ~~upon the effectiveness of any Incremental Amendment,~~ pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~be amended~~ not apply to the ~~extent~~ transactions effected pursuant to this clause (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoe). ~~(d)~~ 2.22.6. The ~~Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect~~ Lenders hereby irrevocably authorize such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary in order to establish new tranches or sub-tranches or to maintain a single tranche in respect of Revolving Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Lead Borrower to enter into such technical amendments as may be necessary or ~~appropriate,~~ appropriate in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower~~Lead Borrower in connection with the establishment of such new tranches or sub-tranches or the maintaining of a single tranche, ~~to effect the provisions of~~ in each case on terms consistent with this Section ~~2.8~~2.22. 2.22.7. ~~The applicable Borrowers will use~~ Notwithstanding anything to the contrary in this Section 2.22 or in any other provision of any Loan Document, if the proceeds on the date of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion effectiveness of any Incremental ~~Term Loan)~~ Revolving Facility are intended to be applied to finance an acquisition or ~~by any other bank~~ similar Investment and the Lenders or ~~other financial institution; provided that any~~ Additional Revolving Lenders providing such ~~bank or financial institution~~ Incremental Revolving Facility so agree, the availability thereof shall be ~~reasonably satisfactory~~ subject to ~~the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees~~customary “SunGard” or “certain funds” conditionality, including in a manner consistent with Section 4.01. 2.22.8. This Section ~~2.8~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.02 to the ~~contrary~~contrary and shall, to extent applicable, be subject in all respects to Section 1.10.

Appears in 1 contract

Samples: Abl Credit Agreement (Hillman Solutions Corp.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ The Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to ~~time after the Escrow Release Date~~time, request Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term ~~Loans~~Loans and/or Incremental Revolving Credit Commitments, as the case may be, in their own discretion. Such notice shall set ~~forth~~ forth: (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), , (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “~~Increased Amount~~ Incremental Effective Date”), ~~and~~ and (iii) (A) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“~~Incremental~~ Other Term Loans”~~). The proceeds of any~~ ) and/or (B) whether such Incremental ~~Term Loans shall not~~ Revolving Credit Commitments are to be ~~used~~ Revolving Credit Commitments or commitments to make ~~Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~revolving loans with pricing and/or amortization terms and/or maturity and/or other terms different from the Revolving Credit Loans (“Other Revolving Loans”). (b) The ~~applicable Borrowers~~ Borrower and each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term ~~Loans~~Loans and/or Incremental Revolving Credit Commitments; ~~provided that~~ provided, that: (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the ~~applicable Borrowers~~ Borrower and the Incremental Term Lenders in their sole discretion), the ~~Incremental~~ Other Term Loans shall have ~~no more restrictive~~ terms, ~~when~~ taken as a whole, that are no more favorable to the Incremental Term Lenders than the ~~Term Loans except (x) if the Term Lenders holding the Term Loans also receive~~ terms hereunder unless such terms are added for the benefit of ~~such restrictive terms, (y) such terms are not effective until~~ all Secured Parties or apply only after the ~~Latest~~ then-latest Maturity Date of the ~~then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent,~~ Facilities, (ii) the final maturity date of any ~~Incremental~~ Other Term Loans shall be no earlier than the ~~Latest~~ Maturity Date at of the ~~time such Incremental~~ Term ~~Loans are established, and,~~ Loans, (iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans~~; provided further that~~, (iv) except as to pricing, amortization and final maturity date (which shall, subject to clause (v) of this proviso, be determined by the Borrower and the Incremental Revolving Credit Lenders in their sole discretion), the Other Revolving Loans shall have the terms, taken as a whole, that are no more favorable to the Incremental Revolving Credit Lenders unless such terms are added for the benefit of all Secured Parties or apply only after the then-latest Maturity Date of the Facilities, (v) the final maturity date of any Other Revolving Loans shall be no earlier than the Maturity Date of the Revolving Credit Facility and there shall be no mandatory commitment reductions prior to such Maturity Date, (vi) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (B) repayment required upon the maturity date of the Incremental Revolving Credit Commitments and (C) repayment in connection with a permanent repayment and termination of commitments (subject to Section 2.14(b)(vii) below)) of Loans with respect to Incremental Revolving Credit Commitments after the associated Incremental Effective Date shall be made on a pro rata basis with all other Revolving Credit Commitments on such Incremental Effective Date, (vii) the permanent repayment of Revolving Credit Loans with respect to, and termination of, Incremental Revolving Credit Commitments hereunder after the associated Incremental Effective Date shall be made on a pro rata basis, with all other Revolving Credit Commitments on the Incremental Effective Date, except that the Borrower may permanently repay and terminate commitments of any such Class on a better than pro rata basis as compared to any other Class with a later maturity date than such Class and (viii) any Incremental Term ~~Loans~~Loans or Incremental Revolving Credit Commitments, if (A) to the ~~Effective~~ extent secured, may only be secured by property (or a subset thereof) that secures the Obligations and (B) may only be guaranteed by Persons (or a subset thereof) that also guarantee the Obligations. provided further that the All-In Yield in respect of any ~~such Incremental~~ Other Term Loan ~~exceeds~~ shall be the ~~Applicable Margin~~ same as that applicable to the Term Loans; except that the All-In Yield in respect of any Other Term B Loan may exceed the All-In Yield for the Term Loans by no more than 25 50 basis points, ~~such~~ or if it does so exceed the All-In Yield, the Applicable ~~Margin~~ Rate in respect of the Term Loans shall be increased so that the ~~Effective~~ All-In Yield in respect of such ~~Incremental~~ Other Term ~~Loan~~ Loan, is no more than 25 50 basis points higher than the ~~Effective~~ All-In Yield for ~~such~~ the Term B Loans or and if the lowest permissible ~~Eurodollar~~ Eurocurrency Rate is greater than ~~1.00~~0.00% or the lowest permissible Base Rate is greater than ~~2.00~~1.00% for such ~~Incremental~~ Other Term Loan, the difference between such “floor” and ~~1.00~~0.00% in the case of ~~Eurodollar~~ Eurocurrency Rate Incremental ~~Term Loans (~~Loans, or ~~2.00~~1.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of the this proviso. . (c) The Incremental Term Loans or Incremental Revolving Credit Commitments may be secured and, if secured, shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Term ~~B Loans~~Loans and Revolving Credit Loans or may be unsecured; provided that, if such Incremental Term Loans or Incremental Revolving Credit Commitments rank junior in right of security or payment with the Term Loans or Revolving Credit Loans or are unsecured, such Incremental Term Loan or Incremental Revolving Credit Commitments will be established as a separate facility from the Terms Loans or Revolving Credit Facility, respectively. In the case of any junior lien or unsecured Incremental Term Loans or Incremental Revolving Credit Commitments, such Indebtedness (x) shall be subject to restrictions on voluntary prepayments as contemplated under Section 7.12, (y) shall be subject to a Second Lien Intercreditor Agreement and (z) shall not be subject to the second proviso in clause (b) above. (cd) Notwithstanding the ~~foregoing, but~~ foregoing and subject to ~~the last paragraph of~~ Section ~~4.2 and Section 14.13(e)~~1.14, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section ~~2.8 unless~~ 2.14, unless (i) ~~both at the time of any such request and~~ upon the effectiveness of any Incremental Amendment, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan or Incremental Revolving Credit Commitment is made (and after giving effect thereto) no Default or Event of Default shall ~~be continuing;~~ exist, (ii) ~~after giving~~ the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects (or if qualified by materiality, in all respects) on and as of the date of such Credit Extension with the same effect as though made on and as of such date, except to the extent such ~~Incremental~~ representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects (or if qualified by materiality, in all respects) as of such earlier date and (iii) in the case of any Other Term ~~Loan Commitments~~Loans that are secured by a Lien that is junior to the Lien that secures the Obligations, the ~~conditions of Section 4.2(a)~~ Borrower shall be ~~satisfied (it being understood that all references to “~~in compliance with the covenants set forth in Section 7.10 determined on a Pro Forma Basis as of the date of the ~~making of~~ most recently ended Test Period as if such ~~Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the~~ Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered had been outstanding on the ~~Original Closing Date other than changes to~~ last day of such ~~legal opinion resulting from a change in law, change in fact or change to counsel’s form~~ fiscal quarter of ~~opinion reasonably satisfactory to~~ the ~~Agent~~Borrower for testing compliance therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (de) The Incremental Amendment may, without the consent of ~~Parent~~ Borrower, or any other Loan Party, ~~Agent~~ Agents or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent~~ Borrower, to effect the provisions of this Section ~~2.8~~2.14. The ~~applicable Borrowers~~ Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Credit Loans for any purpose not prohibited by this Agreement. Incremental Term Loans and Incremental Revolving Credit Commitments may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Credit Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution other than the existing Lenders providing Incremental Revolving Credit Commitments shall be reasonably satisfactory to the ~~Agent~~ Administrative Agent, each L/C Issuer, the Swing Line Lender and the ~~Parent~~ Borrower. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. . (f) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Delta Tucker Holdings, Inc.)

Incremental Credit Extensions. (a) ~~One~~ The Borrowers may at any time or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Effective Date and until the Availability Date, by notice to the Administrative Agent, request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the Commitments (the “Commitment Increases”); provided that: (i) upon the effectiveness of any Incremental ~~Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal~~ Amendment referred to below after giving effect to the ~~remaining Incremental Amount)~~incurrence of such Commitment Increase, no Default or Event of Default shall exist; (ii) upon the ~~date on~~ effectiveness of any Incremental Amendment referred to below, all of the representations and warranties of each Borrower set forth in Section 7 and in each other Credit Document shall be true and correct in all material respects as of such time (except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such ~~Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”~~earlier date)~~, and~~ ; (iii) ~~whether such Incremental Term Loan Commitments are~~ the aggregate amount of Commitment Increases pursuant to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans this Section 1.14 shall not ~~be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise.~~exceed $350,000,000; (biv) ~~The applicable~~ the Borrowers ~~and each Incremental Term Lender~~ shall ~~execute and deliver~~ have delivered to the Administrative Agent a certificate executed by an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms Authorized Officer of the ~~applicable Incremental Term Loans; provided that~~ Borrowers certifying compliance with the requirements of preceding clauses (i~~) except as to pricing~~), ~~amortization and final maturity date (which shall, subject to clause~~ (ii) and (iii); and (v) each Credit Party shall have delivered to the Administrative Agent such other officers’ certificates, board of ~~this proviso,~~ director (or equivalent governing body) resolutions and evidence of good standing (to the extent available under applicable law) as the Administrative Agent shall reasonably request. (b) Each Commitment Increase shall be ~~determined~~ in an aggregate principal amount that is not less than $15,000,000 (or such lesser amount as agreed to by the ~~applicable Borrowers and the Incremental Term Lenders in their sole discretion~~Administrative Agent), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) ~~Notwithstanding~~ Each notice from the ~~foregoing, but subject~~ Borrowers pursuant to ~~the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under~~ this Section ~~2.8 unless (i) both at~~ 1.14 shall set forth the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date requested amount of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the AgentCommitment Increase. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment Commitment Increases may be ~~memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may~~provided, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but ~~each~~ no existing Lender will ~~not~~ have an obligation to make a portion of any ~~Incremental Term Loan~~Commitment Increase) or by any other bank or other financial ~~institution~~institution (any such other bank or other financial institution being called an “Additional Lender”); provided that ~~any~~ the Administrative Agent, the Swingline Lender and each Issuing Lender shall have consented (such ~~bank~~ consent not to be unreasonably withheld or ~~financial institution~~ delayed) to such Lender’s or Additional Lender’s providing such Commitment Increases if such consent would be required under Section 13.04 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Commitment Increases shall ~~be reasonably satisfactory~~ become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the ~~Agent~~ other Credit Documents, executed by the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the ~~Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees.~~ Administrative Agent. (d) This Section ~~2.8~~ 1.14 shall supersede any provisions in Section ~~2.7~~ 13.06 or ~~12.3~~ 13.12 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Overseas Shipholding Group Inc)

Incremental Credit Extensions. ~~(a) One~~ The Borrower may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Term Loan~~ Commitments ~~being requested (which shall~~ to be ~~in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal~~ made available to the ~~remaining Incremental Amount)~~Borrower (each such increase, ~~(ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the~~ a “~~Increased Amount Date~~Commitment Increase”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment~~Amendment referred to below, no Default or Event of Default shall exist and at the ~~time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default~~ Borrower shall be ~~continuing; (ii)~~ in compliance with the covenants set forth in Section 6.10 determined on a pro forma basis as of the last day of the most recently ended Test Period as if the Commitments, after giving effect to such ~~Incremental Term Loan Commitments~~Commitment Increase, had been fully drawn on the last day of the applicable Test Period (assuming for such purpose that such covenants applied as of the end of such Test Period, whether or not such last day of such Test Period is prior to the first date that any such covenant is otherwise tested pursuant to the terms of Section 6.10). Notwithstanding anything to the contrary herein, the ~~conditions~~ aggregate amount of ~~Section 4.2(a)~~ Commitments hereunder including all then available Commitment Increases shall not exceed $500,000,000. Each Commitment Increase shall be ~~satisfied (it being understood that all references~~ on the same terms as the Commitments in effect immediately prior to “such Commitment Increase. Each notice from the ~~date~~ Borrower pursuant to this Section 2.11 shall set forth the requested amount of the ~~making of~~ relevant Commitment Increase and such ~~Loan” or similar language~~ notice may be set forth in ~~such Section 4.2(a) shall be deemed to refer to~~ the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. ~~Each~~ Commitment Increases may be provided by any existing Lender or a new Lender in each case in their sole discretion; provided that each of the ~~parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence~~ Administrative Agent and ~~terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with~~ the applicable ~~Borrower’s consent~~ Issuing Banks shall have consented (not to be unreasonably ~~withheld~~withheld or delayed) to any Lender providing such Commitment Increase, in each case, if such consent would be required under Section 9.6(c) for an assignment of Loans or Commitments, as applicable, to such Lender. Commitments in respect of Commitment Increases shall become Commitments (or in the case of a Commitment Increase to be provided by an existing Lender that already has such a Commitment, an increase in such Lender’s Commitment) under this Agreement and ~~furnished~~ shall be effected pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other ~~parties hereto. (d)~~ Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment Increase and the Administrative Agent. The Incremental Amendment may, without the consent of ~~Parent Borrower, or~~ any other ~~Loan Party, Agent or~~ Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the ~~Agent and the Parent Borrower~~Administrative Agent, to effect the provisions of this Section ~~2.8~~2.11. In connection with each Incremental Amendment, Schedule 1.1A shall be amended such that after giving effect to the Commitment Increase the LC Commitments are pro rata amongst the Lenders. The ~~applicable Borrowers will use the proceeds~~ LC Commitments of ~~the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans~~ an Issuing Bank may be ~~made by~~ reduced without its consent to accomplish the foregoing. For the avoidance of doubt any ~~existing~~ new Lender ~~(but each existing Lender will~~ taking a Commitment Increase shall become an Issuing Bank. While not ~~have an obligation~~ required to ~~make a portion of~~ be solely in this form it is anticipated that any Incremental ~~Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution~~ Amendment shall be ~~reasonably satisfactory to the Agent and the Parent Borrower.~~ accomplished simply by an amendment amending Schedule 1.1A. No Lender shall be obligated to provide any ~~Incremental Term Loans~~ Commitment Increases, unless it so ~~agrees~~agrees in its sole discretion. Upon each increase in the Commitments pursuant to this Section 2.11, each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Commitment Increase (each, a “Commitment Increase Lender”), and each such Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Xxxxxx’s participations hereunder in outstanding Letters of Credit such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Lender (including each such Commitment Increase Lender) will equal the percentage of the aggregate Commitments of all Lenders represented by such Xxxxxx’s Commitment and (b) if, on the date of such increase, there are any Loans outstanding, such Loans shall on the date of effectiveness of such Commitment Increase be prepaid from the proceeds of additional Loans made hereunder (after reflecting such increase in Commitments), which prepayment shall be accompanied by accrued interest on the Loans being prepaid and any costs incurred by any prepaid Lender in accordance with Section 2.15. The Administrative Agent and the Lenders hereby agree that the minimum borrowing requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to this Section 2.11. This Section ~~2.8~~ 2.11 shall supersede any provisions in Section ~~2.7~~ 2.14 or ~~12.3~~ 9.1 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (FTAI Aviation Ltd.)

Incremental Credit Extensions. (a) ~~One~~ The Parent Borrower may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Term Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which~~ each such increase, a “Revolving Commitment Increase”). Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than an amount of $10,000,000 and thereafter in minimum increments of $1,000,000 ~~and a minimum~~ (provided that such amount may be less than an amount of $~~25,000,000~~ 10,000,000 (or ~~equal to~~ any increment less than $1,000,000) if such amount represents all remaining availability under the ~~remaining Incremental Amount), (ii)~~ limit set forth in the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwisenext sentence. (b) ~~The applicable Borrowers and each Incremental Term Lender shall execute and deliver~~ Notwithstanding anything to the ~~Agent an Incremental Amendment and such other documentation as~~ contrary herein, the ~~Agent~~ aggregate amount of the Revolving Commitment Increases shall ~~reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender~~not exceed $50,000,000. Each ~~Incremental Amendment~~ notice from the Parent Borrower pursuant to this Section shall ~~specify~~ set forth the requested amount and proposed terms of the ~~applicable Incremental Term Loans~~relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”); provided that the Administrative Agent shall have consented (isuch consent not to be unreasonably withheld) ~~except~~ to such Lender’s or Additional Lender’s providing such Revolving Commitment Increases if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Parent Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Any Revolving Commitment Increase shall be on the same terms (including, without limitation, with respect to pricing) and treated the same as the existing Facility (including, ~~amortization and final~~ without limitation, with respect to maturity date ~~(which shall, subject to clause (ii~~thereof) and ~~(iii)~~ shall be considered to be part of ~~this proviso,~~ the Facility; provided that the upfront fees applicable to any Revolving Commitment Increases shall be determined by the ~~applicable Borrowers~~ Parent Borrower and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this provisolenders thereof. The Incremental ~~Term Loans shall have~~ Amendment may, without the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time consent of any other Lenders or Loan Parties, effect such ~~request~~ amendments to this Agreement and ~~upon~~ the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Parent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental ~~Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default~~ Amendment shall be ~~continuing; (ii) after giving effect~~ subject to ~~such Incremental Term Loan Commitments,~~ the satisfaction on the date thereof of each of the conditions of set forth in Section ~~4.2(a) shall be satisfied~~ 4.02 (it being understood that all references to “the date of ~~the making of~~ such ~~Loan~~Credit Extension” or similar language in such Section ~~4.2(a)~~ 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) ~~(except, to~~ and such other conditions as the ~~extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations~~ parties thereto shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agentagree. The ~~Agent~~ Parent Borrower shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the ~~Incremental Term Loans~~ Revolving Commitment Increases for any ~~purpose~~ purposes not prohibited by this Agreement. ~~Incremental Term Loans may~~ Upon each increase in (A) the Revolving Credit Commitments pursuant to this Section 2.14, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be ~~made by any existing~~ deemed to have assigned to each Lender ~~(but each existing Lender will not have an obligation to make~~ providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any ~~Incremental Term Loan)~~ Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the~~ Lender in accordance with Section 3.05. The Administrative Agent and the ~~Parent Borrower. No Lender~~ Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~be obligated~~ not apply to ~~provide any Incremental Term Loans unless it so agrees.~~ the transactions effected pursuant to the immediately preceding sentence. (c) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Clear Channel Outdoor Holdings, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ The Borrower may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to ~~time after the Escrow Release Date~~time, request Incremental Term Loan ~~Commitments, as applicable,~~ Commitments in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be ~~Term Commitments or~~ commitments to make term loans on the same terms as the Term B Loans or with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~. (b) The ~~applicable Borrowers~~ Borrower and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the ~~applicable Borrowers~~ Borrower and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the same terms as the Term ~~Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term~~ B Loans or (zy) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, ~~and,~~ and (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, ~~with respect to any Incremental Term Loans,~~ if the Effective Yield in respect of any such Incremental Term Loan exceeds the ~~Applicable Margin~~ Effective Yield of ~~any~~ the Term B Loans by more than 25 50 basis points, ~~such~~ then the Applicable Margin for the Term B Loans shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 50 basis points higher than the Effective Yield for ~~such~~ the Term B Loans and if the lowest permissible Adjusted Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Adjusted Eurodollar Rate Incremental Term ~~Loans (~~Loans, or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of the this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing~~, but subject to the last paragraph of Section 4.2 and Section 14.13(e)~~, no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall exist (except to the extent the proceeds of the Incremental Term Loans are to be ~~continuing~~used to finance a Designated Acquisition, in lieu of such condition, (A) no Event of Default shall be continuing at the time of execution of the applicable contract or agreement for such acquisition and (B) no Event of Default under Sections 8.1(a) or (f) shall be continuing at the time of making such acquisition)); (ii) after giving effect to such Incremental ~~Term Loan~~ Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental ~~Amendment)~~ Amendment (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an a Designated Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ~~Original~~ Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the ~~applicable~~ Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of ~~Parent~~ Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the ~~Parent~~ Borrower, to effect the provisions of this Section 2.8. The ~~applicable Borrowers~~ Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the ~~Parent~~ Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.

Appears in 1 contract

Samples: Term Loan Agreement (Albertsons Companies, Inc.)

Appears in 1 contract

Samples: Term Loan Agreement (Keane Group, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ Any Borrower, may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Closing Date, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in each case denominated in Dollars and in an aggregate amount not to exceed (when aggregated with any Incremental Equivalent Debt) the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender, but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term ~~Loans~~Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion. ~~Such~~ Each notice provided pursuant to this Section 2.20 shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $~~1,000,000~~ 10,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become ~~effective (the “Increased Amount Date”)~~effective, ~~and~~ (iii) in the case of Incremental Revolving Commitments, whether such Incremental Revolving Commitments are to constitute an increase to the Dollar Tranche Commitments or Multicurrency Tranche Commitments; provided that, where multiple Classes of Revolving Commitments exist with different Maturity Dates, any Incremental Revolving Commitments shall constitute and increase to the Class of Revolving Commitments with the Latest Maturity Date and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to be make term loans with the same interest rates, amortization, maturity and other terms as the Initial Term ~~Commitments~~ Loans made on the Closing Date or commitments to make term loans with ~~interests~~ interest rates and/or amortization and/or maturity and/or other terms different from the Initial Term B Loans (“~~Incremental~~ Other Term Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~. (b) [reserved]. (c) The applicable ~~Borrowers~~ Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such customary other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment providing for Incremental Term Loans shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, ~~amortization~~ amortization, mandatory prepayments and final maturity date (which shall, subject to clause (ii), (iii), (iv) and (~~iii~~vi) of this proviso, be determined by ~~the applicable Borrowers~~ such Borrower and the Incremental Term Lenders in their sole discretion), the ~~Incremental~~ Other Term Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the ~~Term Lenders holding~~ same terms as the ~~Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing~~ Initial Term Loans or (zy) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any ~~Incremental~~ Other Term ~~Loans~~ Loan shall be no earlier than the Latest Maturity Date ~~at the time such Incremental~~ with respect to then-existing Term ~~Loans are established, and~~Loans, (iii) such Class of Other Term Loans shall be denominated in Dollars or Canadian Dollars, (iv) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term B Loans with the Latest Maturity Date, (v) the prepayment provisions of any Other Term Loans shall not be more favorable than the prepayment provisions applicable to the Term Loans that will remain outstanding after giving effect to the incurrence of such Other Term Loans and use of proceeds thereof and (vi) the Effective Yield of any Other Term Loans may exceed the Effective Yield then applicable to the Initial Term Loans; provided ~~further that, with respect to any Incremental Term Loans, if~~ that the Effective Yield ~~in respect of any such Incremental~~ for the Initial Term ~~Loan exceeds the Applicable Margin of any Term B~~ Loans ~~by more than 25 basis points, such Applicable Margin~~ shall be increased to the extent necessary (without any further action by any party or any amendment hereto) so that the Effective Yield ~~in respect of~~ for such ~~Incremental~~ Initial Term ~~Loan~~ Loans is ~~no more than 25 basis points higher~~ not less than the Effective Yield ~~for~~ of any such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Other Term Loans ~~(or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso~~minus 0.50%. The Incremental Term Loans shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Term B Loans and shall not be (x) secured by any property or assets of Parent or any Restricted Subsidiary other than the Collateral or (y) guaranteed by Parent or any of its Restricted Subsidiaries other than the Guarantors; provided that, if such Other Term Loans rank junior in right of security with the Term Loans, such Other Term Loans will be established as a separate Tranche from the Term Loans. In the case of any junior lien Incremental Term Loans, such Indebtedness shall be subject to the terms of an Approved Intercreditor Agreement. (cd) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other customary documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Any Incremental Revolving Commitment established hereunder shall have terms identical to (and shall form part of) such Class of Revolving Commitments with the Latest Maturity Date existing on the Closing Date, it being understood that the Borrowers and the Administrative Agent may make (without the consent of or notice to any other party) any amendment to reflect such increase in the Revolving Commitments. (e) Notwithstanding the foregoing, ~~but subject to the last paragraph of Section 4.2 and Section 14.13(e),~~ no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section ~~2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment~~2.20 unless, ~~no Event of Default shall exist and~~ subject to Section 1.04, at the time that any such Incremental Term Loan or Incremental Revolving Commitment is made (and after giving effect thereto), (A) no Event of Default shall ~~be continuing; (ii)~~ exist or would exist after giving effect thereto (including on a pro forma basis) and (B) the representations and warranties of the Borrowers set forth in this Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term ~~Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references~~ Loans is used to ~~“the date of the making of such Loan”~~ finance an acquisition or ~~similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ other Investment permitted by this Agreement and to the extent the ~~proceeds~~ Incremental Term Lenders participating in such tranche of ~~the~~ Incremental Term Loans ~~are to be used to finance an Acquisition~~agree, ~~such representations~~ the foregoing clause (B) shall be limited to customary “specified representations” and those representations included in the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes agreement related to such ~~legal opinion resulting from a change in law, change in fact~~ acquisition or ~~change to counsel’s form of opinion reasonably satisfactory~~ other Investment that are material to the ~~Agent~~interests of the Lenders and only to the extent that Parent or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the ~~applicable Borrower’s~~ Borrowers’ consent (not to be unreasonably withheld, delayed or conditioned) and furnished to the other parties hereto. Each Incremental Amendment shall be delivered to the Administrative Agent, together with such documents (including local law confirmations as to Collateral) and legal opinions substantially consistent with those delivered on the Closing Date (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion) as to such matters as are reasonably requested by the Administrative Agent. (df) The Incremental Amendment may, without the consent of ~~Parent Borrower~~the Administrative Agent, ~~or any other Loan Party, Agent~~ the Collateral Trustee or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower~~Borrowers, to effect the provisions of this Section ~~2.8~~2.20, including those required by the Incremental Term Loan Lenders or Incremental Revolving Lenders, as applicable (and not adverse to any existing Lender after giving effect to the Incremental Loans made pursuant to such amendment). The ~~applicable~~ Borrowers will use the proceeds of the Incremental Term Loans and Incremental Revolving Loans for ~~any purpose not prohibited by this Agreement~~their general corporate purposes (including loans and other Investments in Parent and its Subsidiaries as permitted herein). Incremental Term Loans and Incremental Revolving Commitments may be made by any existing Lender (but ~~each~~ no existing Lender will ~~not~~ have an any obligation to make a or provide any portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution (including any new or existing Lenders) providing Incremental Revolving Commitments shall be reasonably satisfactory to the ~~Agent~~ Administrative Agent, each Issuing Bank and the ~~Parent Borrower~~Borrowers. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. . (g) This Section ~~2.8~~ 2.20 shall supersede any provisions in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Endo International PLC)

Incremental Credit Extensions. (a) ~~One~~ The Borrower may, at any time, on one or more ~~Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by~~ occasions deliver a written ~~notice~~ request to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy of such request to each of the Lenders) ~~from time~~ to ~~time after~~ add one or more new Classes of Credit Facilities and/or increase the ~~Escrow Release Date~~principal amount of the Loans under any Credit Facility by requesting new term loan commitments to be added to such Loans (any such new Class or increase, ~~request~~ an “Incremental ~~Term Loan Commitments~~Facility” and any loans made pursuant to an Incremental Facility, ~~as applicable,~~ “Incremental Loans”) in an aggregate principal amount not to exceed the Incremental ~~Amount~~ Cap; provided that: (i) no Incremental Commitment may be less than $5,000,000; (ii) except as separately agreed from ~~one or more~~ time to time between the Borrower and any Lender, no Lender shall be obligated to provide any Incremental ~~Term Lenders (which~~Commitment, ~~in each case, may include any existing Lender) willing~~ and the determination to provide such ~~Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments being requested (which~~ commitments shall be ~~in minimum increments~~ within the sole and absolute discretion of ~~$1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which~~ such ~~Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and~~ Lender; (iii) ~~whether such~~ no Incremental ~~Term~~ Facility or Incremental Loan ~~Commitments are to be Term Commitments~~ (or ~~commitments to make term loans with interests rates and/or amortization and/or maturity and/or~~ the creation, provision or implementation thereof) shall require the approval of any existing Lender (other ~~terms different from the Term B Loans (“Incremental Term Loans”). The proceeds~~ than in its capacity, if any, as a Lender providing all or part of any Incremental ~~Term Loans shall not be used to make Restricted Payments~~ Commitment or ~~prepayments of Subordinated Indebtedness pursuant to Section 10.6~~Incremental Loan), ~~Section 10.11~~ the Administrative Agent (unless its rights and interests are adversely affected in any material respect) or ~~otherwise~~any other agent or arranger; (iv) [Reserved]. (bv) ~~The~~ the interest rate and any fees applicable ~~Borrowers and each~~ to any Incremental ~~Term Lender shall execute and deliver to the Agent an~~ Facility or Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, Loans will be determined by the ~~applicable Borrowers~~ Borrower and the lenders providing such Incremental ~~Term Lenders~~ Facility or Incremental Loans; provided, that solely with respect to any Incremental Facility or Incremental Loans which are pari passu with the Initial Loans in ~~their sole discretion)~~right of payment and with respect to security, the ~~Incremental Term Loans shall have no~~ All-In Yield will not be more ~~restrictive terms, when taken as a whole,~~ than 0.50% higher than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory corresponding All-In Yield applicable to the ~~Agent~~Initial Loans unless the All-In Yield with respect to the Initial Loans is adjusted to be equal to the All-In Yield with respect to the relevant Incremental Facility or Incremental Loans minus 0.50%; provided, that this clause (iiv) shall not apply to any Incremental Loans that do not exceed an aggregate principal amount, together with all other Incremental Facilities then outstanding, of $75,000,000; (vi) the final maturity date of with respect to any Incremental ~~Term~~ Loans shall be no earlier than the Latest Maturity Date at the time ~~such Incremental Term Loans are established, and,~~ of the incurrence thereof; (~~iii~~vii) the Weighted Average Life to Maturity of any Incremental ~~Term Loans~~ Facility shall be no shorter than the remaining Weighted Average Life to Maturity of any then-existing Class of Loans (without giving effect to any prepayments thereof) except as may be required to achieve fungibility with any existing Loans hereunder to the ~~Term B Loans; provided further that,~~ extent intended to be fungible; (viii) (A) any Incremental Facility may rank pari passu with or junior to any then-existing Class of Loans in right of payment and may be secured by the Collateral pari passu with or junior to any then-existing Class of Loans with respect to ~~any~~ security or be unsecured (and to the extent the relevant Incremental ~~Term Loans, if~~ Facility is pari passu with or subordinated to the ~~Effective Yield~~ Loans in right of security with respect ~~of any such Incremental Term Loan exceeds~~ to the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term LoansCollateral, shall be ~~equated~~ subject to ~~interest rate margin for purposes~~ the Intercreditor Agreements (and/or any other applicable Acceptable Intercreditor Agreement), it being understood that any terms of ~~this proviso. The~~ subordination in right of payment of any Incremental ~~Term~~ Facility to any Indebtedness may be determined solely by the Borrower in its sole discretion) and (B) no Incremental Facility may be (x) guaranteed by any Person which is not a Loan Party or (y) secured by any assets other than the Collateral; (A) any prepayment (other than any scheduled amortization payment) of Incremental Loans ~~shall have the same guarantees as and rank~~ that are pari passu with any then-existing Loans in right of payment and security (1) shall with respect to mandatory prepayments, be made on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) with such existing Loans and (2) may, with respect to voluntary prepayments, share on a pro rata basis, greater than pro rata basis or less than pro rata basis with the ~~Term B~~ Initial Loans., as determined by the Borrower, and (B) any Incremental Loans that are subordinated to any then-existing Loans in right of payment or security shall not receive any mandatory prepayments other than Declined Proceeds prior to the repayment in full of the existing Loans (and all other then-existing Loans that are Second Priority Secured Obligations requiring ratable prepayment), except, in each case that the Borrower and the lenders providing the relevant Incremental Loans shall be permitted, in their sole discretion, to elect to prepay or receive, as applicable, any prepayments on a less than pro rata basis (but not on a greater than pro rata basis); (cx) ~~Notwithstanding~~ except as otherwise agreed by the ~~foregoing~~Lenders providing the relevant Incremental Facility in connection with any acquisition, ~~but subject to the last paragraph~~ investments and repayments, repurchases and redemptions of ~~Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under~~ indebtedness not prohibited by this ~~Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment~~Agreement, no Event of Default shall exist ~~and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii)~~ immediately prior to or after giving effect to such Incremental ~~Term Loan Commitments~~Facility; (xi) except as otherwise required or permitted in this Section 2.22, all other terms of any Incremental Facility, if not consistent with the ~~conditions~~ terms of ~~Section 4.2(a)~~ the Initial Loans, shall be ~~satisfied~~ reasonably satisfactory to the Borrower and the Administrative Agent (it being understood that ~~all references~~ any terms which are not consistent with the terms of the Initial Loans and are applicable only after the then-existing Latest Maturity Date are deemed to “be reasonably acceptable to the Administrative Agent); (xii) the proceeds of any Incremental Facility may be used for working capital, general corporate purposes and any other purpose not prohibited by this Agreement; (xiii) on the date of the making of any Incremental Loans that will be added to any existing Class of Loans, and notwithstanding anything to the contrary set forth in Sections 2.08 or 2.13, such ~~Loan~~Incremental Loans shall be added to (and constitute a part of) each borrowing of outstanding Loans of such Class, as applicable, of the same type with the same Interest Period of the respective Class on a pro rata basis (based on the relative sizes of the various outstanding Borrowings), so that each Lender providing such Incremental Loans will participate proportionately in each then outstanding borrowing of the applicable Loans of the same type with the same Interest Period of the respective Class; (xiv) any increase in the Incremental Cap from voluntary prepayments, redemptions, repurchases or other retirements of unsecured Indebtedness of unsecured Indebtedness incurred under clause (c) of the definition of “Incremental Cap” (and any refinancings thereof), shall only increase the Incremental Cap with respect to the amount available for unsecured Indebtedness; (xv) Incremental Facilities shall be permitted regardless of the amount available under the Incremental Cap and shall not constitute a utilization of any component of the Incremental Cap if any such Incremental Facility serves to effectively replace or ~~similar language~~ extend the maturity of or replaces any Loans or Commitments under (including as may have been terminated under Section 2.19) any then existing Credit Facility or any Replacement Notes, in each case, without increasing the principal amount thereof except with respect to any related premium, penalties, fees and expenses; provided, the amount of any Loans and Commitments so extended or replaced shall not increase the Incremental Cap; and (xvi) the Borrower may select, in its sole discretion, that any Incremental Facility be issued, incurred and/or established under one or more of any available components of the Incremental Cap (as provided in Section 1.10) and if no selection shall have been made, such ~~Section 4.2(a)~~ Incremental Facility shall be deemed to ~~refer~~ have been incurred in reliance on first, clause (c) of the definition of “Incremental Cap” up to the maximum amount permitted thereunder, second, to the extent applicable, clause (b) of the definition of “Incremental Cap”, and thereafter, to the Shared Fixed Incremental Amount. (b) Incremental Commitments may be provided by any existing Lender, or by any other lender (other than any Disqualified Institution) who would be permitted to become a Lender (including any required consents) under Section 9.05 (any such other lender being called an “Additional Lender”); provided that any Additional Lender that is an Affiliated Lender shall be subject to the provisions of Section 9.05(h), mutatis mutandis, to the same extent as if Incremental Commitments and related Obligations had been obtained by such Lender by way of assignment. (c) Each Lender or Additional Lender providing a portion of any Incremental Commitment shall execute and deliver to the Administrative Agent and the Borrower all such documentation (including an amendment to this Agreement or any other Loan Document) as may be reasonably required by the Administrative Agent to evidence and effectuate such Incremental Commitment. On the effective date of such Incremental ~~Amendment~~Commitment, each Additional Lender shall become a Lender for all purposes in connection with this Agreement. (d) ~~(except,~~ As a condition precedent to the ~~extent~~ effectiveness of any Incremental Facility or the ~~proceeds~~ making of any Incremental Loans, (i) upon its reasonable request, the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Administrative Agent shall have received customary ~~legal opinions~~written opinions of counsel, ~~board resolutions and officers’ certificates consistent with those delivered on~~ as well as such reaffirmation agreements, supplements and/or amendments as it shall reasonably require, (ii) the ~~Original Closing Date other than changes~~ Administrative Agent shall have received, from each Additional Lender, an administrative questionnaire, in the form provided to such ~~legal opinion resulting~~ Additional Lender by the Administrative Agent (the “Administrative Questionnaire”) and such other documents as it shall reasonably and customarily require from ~~a change~~ such Additional Lender, (iii) the Lenders shall have received all fees required to be paid in ~~law, change in fact~~ respect of such Incremental Facility or ~~change to counsel’s form of opinion reasonably satisfactory to~~ Incremental Loans and (iv) the ~~Agent. The~~ Administrative Agent shall ~~promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each~~ have received a certificate of the ~~parties hereto hereby agrees that~~Borrower signed by a Responsible Officer thereof: (A) certifying and attaching a copy of the resolutions adopted by the governing body of the Borrower approving or consenting to such Incremental Facility or Incremental Loans, ~~upon the effectiveness of any Incremental Amendment, this Agreement shall be amended~~ and (B) to the extent applicable, certifying that the condition set forth in clause (~~but only to the extent~~a)(x) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties heretoabove has been satisfied. (de) The ~~Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect~~ Lenders hereby irrevocably authorize such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary in order to establish new Classes or sub-Classes in respect of Loans or commitments increased or extended pursuant to this Section 2.22 and authorize the Administrative Agent and the Borrower to enter into such technical amendments as may be necessary or ~~appropriate,~~ appropriate in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower~~Borrower in connection with the establishment of such new Classes or sub-Classes, ~~to effect~~ in each case on terms consistent with this Section 2.22. (f) To the extent the provisions of clause (a)(xiii) above require that Lenders making new Incremental Loans add such Incremental Loans to the then outstanding borrowings of LIBO Rate Loans of the respective Class of Initial Loans or Additional Loans, as applicable, it is acknowledged that the effect thereof may result in such new Incremental Loans having short Interest Periods (i.e., an Interest Period that began during an Interest Period then applicable to outstanding LIBO Rate Loans of the respective Class and which will end on the last day of such Interest Period). (g) Notwithstanding anything to the contrary in this Section ~~2.8. The applicable Borrowers will use~~ 2.22 or in any other provision of any Loan Document, if the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental ~~Term Loan)~~ Facility are intended to be applied to finance an acquisition and the Lenders or ~~by any other bank or other financial institution; provided that any~~ Additional Lenders providing such ~~bank or financial institution~~ Incremental Facility so agree, the availability thereof shall be ~~reasonably satisfactory~~ subject to ~~the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees.~~ customary “SunGard” or “certain funds” conditionality. (h) This Section ~~2.8~~ 2.22 shall supersede any ~~provisions~~ provision in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.02 to the ~~contrary~~contrary and shall, to extent applicable, be subject in all respects to Section 1.10.

Appears in 1 contract

Samples: Second Lien Credit Agreement (Hayward Holdings, Inc.)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ The Lux Borrower and the Co-Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Closing Date, request Incremental Term A Loan Commitments, Incremental Term B Loan Commitments and/or Incremental Revolving Commitments, as applicable, in each case denominated in Dollars and in an aggregate amount not to exceed (when aggregated with any Incremental Equivalent Debt) the Incremental Amount from one or more Incremental Term A Lenders, Incremental Term B Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender, but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term A Loans, Incremental Term B Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion. ~~Such~~ Each notice provided pursuant to this Section 2.20 shall set forth (i) the amount of the Incremental Term A Loan Commitments, Incremental Term B Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $~~1,000,000~~ 10,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term A Loan Commitments, Incremental Term B Loan Commitments and/or Incremental Revolving Commitments are requested to become ~~effective (the “Increased Amount Date”)~~effective, ~~and~~ (iii) in the case of Incremental Revolving Commitments, whether such Incremental Revolving Commitments are to constitute an increase to the Dollar Tranche Commitments or Multicurrency Tranche Commitments; provided that, where multiple Classes of Revolving Commitments exist with different Maturity Dates, any Incremental Revolving Commitments shall constitute and increase to the Class of Revolving Commitments with the Latest Maturity Date, (iv) in the case of Incremental Term A Loan Commitments, whether such Incremental Term A Loan Commitments are commitments to be make term loans with the same interest rates, amortization, maturity and other terms as the Class of Term ~~Commitments~~ A Loans with the Latest Maturity Date or commitments to make term loans with ~~interests~~ interest rates and/or amortization and/or maturity and/or other terms different from the Term A Loans (“Other Term A Loans”) and (v) in the case of Incremental Term B Loan Commitments, whether such Incremental Term B Loan Commitments are commitments to make term loans with the same interest rates, amortization, maturity and other terms as the Class of Term B Loans with the Latest Maturity Date or commitments to make term loans with interest rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“~~Incremental~~ Other Term B Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~. (b) The ~~applicable Borrowers~~ Lux Borrower and the Co-Borrower and each Incremental Term A Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term A Loan Commitment of such Incremental Term A Lender. Each Incremental Amendment providing for Incremental Term A Loans shall specify the terms of the applicable Incremental Term A Loans; provided that (i) except as to pricing, ~~amortization~~ amortization, mandatory prepayments and final maturity date (which shall, subject to ~~clause~~ clauses (ii), (iii), (iv) and (~~iii~~vi) of this proviso, be determined by the ~~applicable Borrowers~~ Lux Borrower and the Co-Borrower and the Incremental Term A Lenders in their sole discretion), the ~~Incremental~~ Other Term A Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the same terms as the Dollar denominated Class of Term ~~Lenders holding the Term~~ A Loans ~~also receive the benefit of such restrictive terms, (y) such terms are not effective until~~ with the Latest Maturity Date ~~of the then existing Term Loans~~ or (zy) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any ~~Incremental~~ Other Term A Loans shall be no earlier than the Latest Maturity Date ~~at the time such Incremental~~ of any Class of Term ~~Loans are established, and~~A Loans, (iii) each Class of Other Term A Loans shall be denominated in Dollars and must have scheduled amortization of at least 5% per annum (although same may have amortization of at least 3.75% per annum for the first year after the issuance thereof), (iv) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term A Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term A Loans with the Latest Maturity Date, (v) the prepayment provisions of any Other Term A Loans shall not be more favorable than the prepayment provisions applicable to the Term A Loans and (vi) the Effective Yield of any Other Term A Loans may exceed the Effective Yield then applicable to the 2014 Term A Loans; provided that (x) the Effective Yield for the 2014 Term A Loans is increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such Other Term A Loans minus 0.50% and (y) the Effective Yield for each other Class of Loans (unless specified otherwise in any Incremental Amendment, Refinancing Amendment or Extension Offer pursuant to which any such Class was created) is increased by a percentage per annum equal to that by which the Effective Yield of the 2014 Term A Loans is (or would have been if then outstanding, if all 2014 Term A Loans have been repaid in full at the time of such determination) increased pursuant to preceding clause (x). The Incremental Term A Loans shall rank pari passu or junior in right of payment and of security with the Term A Loans and shall not be (x) secured by any property or assets of the Parent, the Irish Holdco or any Subsidiary other than the Collateral or (y) guaranteed by the Parent, the Irish Holdco or any of its Subsidiaries other than the Loan Parties; provided that, if such Incremental Term A Loans rank junior in right of security with the Term A Loans, such Incremental Term A Loans will be established as a separate Tranche from the Term A Loans. In the case of any second lien Incremental Term A Loans, such Indebtedness shall be subject to the terms of a Second Lien Intercreditor Agreement. (c) The Lux Borrower and the Co-Borrower and each Incremental Term B Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term B Loan Commitment of such Incremental Term B Lender. Each Incremental Amendment providing for Incremental Term B Loans shall specify the terms of the applicable Incremental Term B Loans; provided ~~further that~~that (i) except as to pricing, ~~with respect~~ amortization, mandatory prepayments and final maturity date (which shall, subject to ~~any~~ clause (ii), (iii), (iv) and (vi) of this proviso, be determined by the Lux Borrower and the Co-Borrower and the Incremental Term B Lenders in their sole discretion), the Other Term B Loans shall have (x) the same terms as the Class of Term B Loans with the Latest Maturity Date or (y) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any Other Term B Loans shall be no earlier than the Latest Maturity Date of any Class of Term B Loans, if (iii) such Class of Other Term B Loans shall be denominated in Dollars and shall have scheduled amortization not to exceed 1% per annum until the Latest Maturity Date of any theretofore outstanding Class of Term B Loans, (iv) the Weighted Average Life to Maturity of any Other Term B Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term B Loans with the Latest Maturity Date and (v) the prepayment provisions of any Other Term B Loans shall not be more favorable than the prepayment provisions applicable to the Term B Loans and (vi) the Effective Yield ~~in respect~~ of any ~~such Incremental Term Loan exceeds the Applicable Margin of any~~ Other Term B Loans ~~by more than 25 basis points,~~ may exceed the Effective Yield then applicable to the 2014 Term B Loans; provided that (x) the Effective Yield for the 2014 Term B Loans is increased (to the extent necessary) such ~~Applicable Margin shall be increased so~~ that the Effective Yield ~~in respect of such Incremental Term Loan~~ thereof is ~~no more than 25 basis points higher~~ not less than the Effective Yield ~~for~~ of such Other Term B Loans minus 0.50% and if (y) the ~~lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00%~~ Effective Yield for ~~such Incremental Term Loan, the difference between such “floor” and 1.00% in the case~~ each other Class of ~~Eurodollar Rate Incremental Term~~ Loans (unless specified otherwise in any Incremental Amendment, Refinancing Amendment or ~~2.00%~~ Extension Offer pursuant to which any such Class was created) is increased by a percentage per annum equal to that by which the Effective Yield of the 2014 Term B Loans is (or would have been if then outstanding, if all 2014 Term B Loans have been repaid in full at the ~~case~~ time of ~~Base Rate Incremental Term Loans, shall be equated~~ such determination) increased pursuant to ~~interest rate margin for purposes of this proviso~~preceding clause (x). The Incremental Term B Loans shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Term B Loans and shall not be (x) secured by any property or assets of the Parent, the Irish Holdco or any Subsidiary other than the Collateral or (y) guaranteed by the Parent, the Irish Holdco or any of its Subsidiaries other than the Subsidiary Guarantors; provided that, if such Incremental Term B Loans rank junior in right of security with the Term B Loans, such Incremental Term B Loans will be established as a separate Tranche from the Term B Loans. In the case of any second lien Incremental Term B Loans, such Indebtedness shall be subject to the terms of a Second Lien Intercreditor Agreement. (cd) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Any Incremental Revolving Commitment established hereunder shall have terms identical to (and shall form part of) such Class of Revolving Commitments with the Latest Maturity Date existing on the Closing Date, it being understood that the Borrowers and the Administrative Agent may make (without the consent of or notice to any other party) any amendment to reflect such increase in the Revolving Commitments. (e) Notwithstanding the foregoing, ~~but subject to the last paragraph of Section 4.2 and Section 14.13(e),~~ no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section ~~2.8~~ 2.20 unless (i) ~~both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and~~ at the time that any such Incremental Term Loan or Incremental Revolving Commitment is made (and after giving effect thereto), (A) no Default or Event of Default shall exist; provided that, in the event that any tranche of Incremental Term Loans is used to finance a Permitted Acquisition and to the extent the Incremental Term Lenders participating in such tranche of Incremental Term Loans agree, the foregoing clause (A) shall be ~~continuing;~~ tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition (~~ii)~~ provided that such Incremental Term Lenders shall not be permitted to waive any Default or Event of Default then existing or existing after giving effect to such tranche of Incremental Term ~~Loan Commitments~~Loans), and (B) the ~~conditions~~ representations and warranties of ~~Section 4.2(a)~~ the Borrowers set forth in this Agreement shall be ~~satisfied~~ true and correct in all material respects (~~it being understood that all references~~ other than to the extent qualified by materiality or “~~the date of the making of~~ Material Adverse Effect”, in which case, such ~~Loan” or similar language in such Section 4.2(a)~~ representations and warranties shall be ~~deemed~~ true and correct); provided that, in the event that the tranche of Incremental Term Loans is used to ~~refer to the effective date of such Incremental Amendment) (except,~~ finance a Permitted Acquisition and to the extent the ~~proceeds~~ Incremental Term Lenders participating in such tranche of ~~the~~ Incremental Term Loans ~~are to be used to finance an Acquisition~~agree, ~~such representations~~ the foregoing clause (B) shall be limited to customary “specified representations” and those representations included in the ~~Specified Representations~~ acquisition agreement related to such Permitted Acquisition that are material to the interests of the Lenders and ~~Specified Acquisition Agreement Representations~~only to the extent that the Irish Holdco or its applicable Subsidiary has the right to terminate its obligations under such acquisition agreement as a result of a breach of such representations; (ii) on a pro forma basis as of the last day of the most recently ended fiscal quarter for which financial statements have been delivered to the Administrative Agent pursuant to clauses (a) or (b) of Section 5.01 (or, if prior thereto, pursuant to Section 3.04) as if (x) in the case of any Incremental Term Loans, such Incremental Term Loans had been outstanding on the last day of such fiscal quarter of the Irish Holdco for testing compliance therewith or (y) in the case any Incremental Revolving Commitments, all Revolving Loans available to the Borrowers, including any such Incremental Revolving Commitment, had been outstanding on the last day of such fiscal quarter of the Irish Holdco for testing compliance therewith, the Irish Holdco shall be in compliance with the covenants set forth in Section 6.12 (at any time prior to the first test date pursuant to said Section 6.12, as if the initially applicable covenant levels were then in effect); and (iii) the Administrative Agent shall have received ~~customary~~ documents and legal ~~opinions, board resolutions and officers’ certificates~~ opinions consistent with those delivered on the ~~Original~~ Closing Date ~~other than changes~~ as to such ~~legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion~~ matters as are reasonably ~~satisfactory to~~ requested by the Administrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the ~~applicable Borrower’s~~ Borrowers’ consent (not to be unreasonably withheld, delayed or conditioned) and furnished to the other parties hereto. (df) The Incremental Amendment may, without the consent of ~~Parent Borrower, or~~ any ~~other Loan Party, Agent~~ Agents or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower~~Borrowers, to effect the provisions of this Section ~~2.8~~2.20. The ~~applicable~~ Borrowers will use the proceeds of the Incremental Term Loans and Incremental Revolving Loans for ~~any purpose not prohibited by this Agreement~~their general corporate purposes (including loans and other Investments in the Irish Holdco and its Subsidiaries as permitted herein). Incremental Term Loans and Incremental Revolving Commitments may be made by any existing Lender (but ~~each~~ no existing Lender will ~~not~~ have an any obligation to make a or provide any portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution (including any new or existing Lenders) providing Incremental Revolving Commitments shall be reasonably satisfactory to the ~~Agent~~ Administrative Agent, each Issuing Bank and the ~~Parent Borrower~~Borrowers. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. . (g) This Section ~~2.8~~ 2.20 shall supersede any provisions in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.02 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Endo International PLC)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ The Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Closing Date, request Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term ~~Loans~~Loans and/or Incremental Revolving Credit Commitments, as the case may be, in their own discretion. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $~~25,000,000~~ 10,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (the “Increased Amount Date”), ) and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are to be Term A Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B A Loans (“~~Incremental~~ Other Term Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~. (b) The ~~applicable Borrowers~~ Borrower and each Incremental Term Lender and/or Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender and/or Incremental Revolving Credit Commitment of such Incremental Revolving Credit Lender. Each Incremental Amendment providing for Incremental Term Loans shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the ~~applicable Borrowers~~ Borrower and the Incremental Term Lenders in their sole discretion), the ~~Incremental~~ Other Term Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the same terms as the Term ~~Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term~~ A Loans or (zy) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any ~~Incremental~~ Other Term Loans shall be no earlier than the ~~Latest~~ Maturity Date at of the ~~time such Incremental~~ Term A Loans ~~are established, and,~~ and (iii) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B A Loans; ~~provided further that~~provided, ~~with respect~~ further, that the interest rate margin (which shall be deemed to ~~any Incremental~~ include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term ~~Loans, if~~ Loan in the ~~Effective Yield~~ initial primary syndication thereof but exclude customary arranger and underwriting fees) in respect of any ~~such Incremental~~ Other Term Loan ~~exceeds~~ shall be the same as that applicable to the Term A Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term A Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees), except that the interest rate margin in respect of any Other Term Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees) may exceed the Applicable ~~Margin of any~~ Rate for the Term B A Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term A Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees) by no more than 25 fifty (50) basis ~~points~~points (it being understood that any such increase may take the form of original issue discount (“OID”), with OID being equated to the interest rates in a manner reasonably determined by the Administrative Agent based on an assumed four-year life to maturity), or if it does so exceed such Applicable Rate (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term A Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees), such Applicable ~~Margin~~ Rate shall be increased so that the ~~Effective Yield~~ interest rate margin in respect of such ~~Incremental~~ Other Term Loan (which shall be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing such Other Term Loan in the initial primary syndication thereof but exclude customary arranger and underwriting fees), is no more than 25 fifty (50) basis points higher than the ~~Effective Yield~~ Applicable Rate for the Term A Loans (which shall, for such purposes only, be deemed to include all upfront or similar fees or original issue discount payable by the Borrower to all Lenders providing the Term B A Loans in the initial primary syndication thereof but exclude customary arranger and underwriting fees); provided, further, that if the ~~lowest permissible Eurodollar Rate is~~ Other Term Loans include an interest rate floor greater than ~~1.00% or~~ the ~~lowest permissible Base Rate is greater than 2.00% for such Incremental~~ applicable interest rate floor, if any, under the Term ~~Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term~~ A Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin solely for purposes of determining whether the interest rate margin of such Other Term Loans is higher than the interest rate margin under the Term A Loans by more than fifty (50) basis points and to the extent the difference in the interest rate floors would cause the interest rate margin of such Other Term Loans to be higher than the interest rate margin for ~~purposes~~ the Term A Loans by more than fifty (50) basis points the interest rate floor (but not in any event the interest rate margin) applicable to the Term A Loans shall be increased to the extent of ~~this proviso~~such differential between interest rate floors (for the avoidance of doubt, in no event shall the difference in interest rate floors result in an increase in the Applicable Rate). The Incremental Term Loans shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Term B A Loans; provided that, if such Incremental Term Loans rank junior in right of security with the Term A Loans, such Incremental Term Loan will be established as a separate facility from the Term A Loans. In the case of any second lien Incremental Term Loans, such Indebtedness (x) shall be subject to restrictions on voluntary prepayments as contemplated under Section 7.12, (y) shall be subject to a Junior Lien Intercreditor Agreement and (z) shall not be subject to the second proviso in clause (b) above. (c) Any Incremental Revolving Credit Commitment established hereunder shall have terms identical to the Revolving Credit Commitments existing on the Closing Date and shall constitute a single Class of Revolving Credit Commitments with such initial Revolving Credit Commitments for all purposes under this Agreement, it being understood that the Borrower and the Administrative Agent may make (without the consent of or notice to any other party) any amendment to reflect such increase in the Revolving Credit Commitments. On the Increased Amount Date with respect to any Incremental Revolving Credit Commitment, (i) each Incremental Revolving Credit Lender of such Class shall purchase by assignment from the other Revolving Credit Lenders (and such other Revolving Credit Lenders shall assign to the Incremental Revolving Credit Lenders) such portion of the Revolving Credit Loans and L/C Advances (if any) of such Class owing to them as shall be designated by the Administrative Agent such that, after giving effect to all such purchases and assignments, the outstanding Revolving Credit Loans and L/C Advances owing to each Revolving Credit Lender of such Class shall equal such Revolving Credit Lender’s Pro Rata Share of the aggregate amount of Revolving Credit Loans and L/C Advances owing to all Revolving Credit Lenders or such Class, and (ii) the participations of the Revolving Credit Lenders of such Class in the L/C Obligations and outstanding Swing Line Loans shall be reallocated based on each Revolving Credit Lender’s Pro Rata Share (as if the outstanding Letters of Credit had been issued, the Unreimbursed Amounts had been paid by the L/C Issuer, and the Swing Line Loans had been advanced by the Swing Line Lender, in each case on such date). (d) Notwithstanding the foregoing~~, but subject to the last paragraph of Section 4.2 and Section 14.13(e)~~, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section ~~2.8~~ 2.14 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan or Incremental Revolving Credit Commitment is made (and after giving effect thereto) no Event of Default shall ~~be continuing;~~ exist and (ii) ~~after giving effect to such Incremental Term Loan Commitments,~~ the ~~conditions of Section 4.2(a)~~ Borrower shall be ~~satisfied~~ in compliance with the covenants set forth in Sections 7.10(a) and (~~it being understood that all references to “~~b) determined on a Pro Forma Basis as of the date of the ~~making~~ most recently ended Test Period as if (x) in the case of any Incremental Term Loan, such ~~Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the~~ Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered had been outstanding on the ~~Original Closing Date other than changes to~~ last day of such ~~legal opinion resulting from a change~~ fiscal quarter of the Borrower for testing compliance therewith or (y) in ~~law~~the case any Incremental Revolving Credit Commitments, ~~change in fact or change to counsel’s form~~ all Revolving Credit Loans available under the Revolving Credit Facility, including any such Incremental Revolving Credit Commitment, had been outstanding on the last day of ~~opinion reasonably satisfactory to~~ such fiscal quarter of the ~~Agent~~Borrower for testing compliance therewith. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent ~~(but only to the extent)~~ necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the ~~applicable~~ Borrower’s consent ~~(not to be unreasonably withheld)~~ and furnished to the other parties ~~hereto~~hereto without any other consent. (de) The Incremental Amendment may, without the consent of ~~Parent Borrower, or~~ any ~~other Loan Party, Agent~~ Agents or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent~~ Borrower, to effect the provisions of this Section ~~2.8~~2.14. The ~~applicable Borrowers~~ Borrower will use the proceeds of the Incremental Term Loans and Revolving Credit Loans made pursuant to Incremental Revolving Credit Commitments for any purpose not prohibited by this Agreement. Incremental Term Loans and Incremental Revolving Credit Commitments may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Credit Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution other than the existing Lenders providing Incremental Revolving Credit Commitments shall be reasonably satisfactory to the Administrative Agent and the ~~Parent~~ Borrower. No Notwithstanding anything to the contrary contained herein, no Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Credit Commitments, unless it so agrees. . (f) This Section ~~2.8~~ 2.14 shall supersede any provisions in ~~Section 2.7~~ Sections 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Res Care Inc /Ky/)

Incremental Credit Extensions. (a) ~~One or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested)~~ Any Borrower, may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Restatement Effective Date, request Incremental Term Loan Commitments and/or Incremental Revolving Commitments, as applicable, in each case denominated in Dollars and in an aggregate amount not to exceed (when aggregated with any Incremental Equivalent Debt) the Incremental Amount from one or more Incremental Term Lenders and/or Incremental Revolving Lenders (which, in each case, may include any existing Lender, but shall be required to be Persons which would qualify as assignees of a Lender in accordance with Section 9.04) willing to provide such Incremental Term ~~Loans~~Loans and/or Incremental Revolving Commitments, as the case may be, in their own discretion. ~~Such~~ Each notice provided pursuant to this Section 2.20 shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments being requested (which shall be in minimum increments of $~~1,000,000~~ 10,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Commitments are requested to become ~~effective (the “Increased Amount Date”)~~effective, ~~and~~ (iii) in the case of Incremental Revolving Commitments, whether such Incremental Revolving Commitments are to constitute an increase to the Dollar Tranche Commitments or Multicurrency Tranche Commitments; provided that, where multiple Classes of Revolving Commitments exist with different Maturity Dates, any Incremental Revolving Commitments shall constitute and increase to the Class of Revolving Commitments with the Latest Maturity Date and (iv) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to be make term loans with the same interest rates, amortization, maturity and other terms as the 2021 Term ~~Commitments~~ Loans made on the Restatement Effective Date or commitments to make term loans with ~~interests~~ interest rates and/or amortization and/or maturity and/or other terms different from the 2021 Term B Loans (“~~Incremental~~ Other Term Loans”)~~. The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~. (b) [reserved]. (c) The applicable ~~Borrowers~~ Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such customary other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment providing for Incremental Term Loans shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, ~~amortization~~ amortization, mandatory prepayments and final maturity date (which shall, subject to clause (ii), (iii), (iv) and (~~iii~~vi) of this proviso, be determined by ~~the applicable Borrowers~~ such Borrower and the Incremental Term Lenders in their sole discretion), the ~~Incremental~~ Other Term Loans shall have ~~no more restrictive terms, when taken as a whole, than the Term Loans except~~ (x) if the ~~Term Lenders holding~~ same terms as the ~~Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing~~ 2021 Term Loans or (zy) such other terms as shall be reasonably satisfactory to the Administrative Agent, (ii) the final maturity date of any ~~Incremental~~ Other Term ~~Loans~~ Loan shall be no earlier than the Latest Maturity Date ~~at the time such Incremental~~ with respect to then-existing Term Loans ~~are established, and~~(except for Other Term Loans incurred pursuant to the Inside Maturity Basket), (iii) such Class of Other Term Loans shall be denominated in Dollars or Canadian Dollars, (iv) the Weighted Average Life to Maturity of any ~~Incremental~~ Other Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Class of Term B Loans with the Latest Maturity Date (except for Other Term Loans incurred pursuant to the Inside Maturity Basket), (v) the prepayment provisions of any Other Term Loans shall not be more favorable than the prepayment provisions applicable to the Term Loans that will remain outstanding after giving effect to the incurrence of such Other Term Loans and use of proceeds thereof and (vi) the Effective Yield of any Other Term Loans may exceed the Effective Yield then applicable to the 2021 Term Loans; provided ~~further that, with respect to any Incremental Term Loans, if~~ that the Effective Yield ~~in respect of any such Incremental~~ for the 2021 Term ~~Loan exceeds the Applicable Margin of any Term B~~ Loans ~~by more than 25 basis points, such Applicable Margin~~ shall be increased to the extent necessary (without any further action by any party or any amendment hereto) so that the Effective Yield ~~in respect of~~ for such ~~Incremental~~ 2021 Term ~~Loan~~ Loans is ~~no more than 25 basis points higher~~ not less than the Effective Yield ~~for~~ of any such Other Term B Loans minus 0.50%; provided, however that the foregoing proviso (x) shall only be effective until the date that is twelve months after the Restatement Effective Date, (y) shall not apply to any Other Term Loans or Incremental Equivalent Debt incurred in reliance on the Incremental Ratio Basket and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental (z) shall not apply to any Other Term Loans (or ~~2.00% in~~ Incremental Equivalent Debt) with a final maturity date at least 24 months after the ~~case of Base Rate Incremental~~ Maturity Date then applicable to the 2021 Term Loans and a Weighted Average Life to Maturity longer by 24 months or more than the Weighted Average Life to Maturity then applicable to the 2021 Term Loans~~, shall be equated to interest rate margin for purposes of this proviso~~. The Incremental Term Loans shall ~~have the same guarantees as and~~ rank pari passu or junior in right of payment and of security with the Term B Loans and shall not be (x) secured by any property or assets of Parent or any Restricted Subsidiary other than the Collateral or (y) guaranteed by Parent or any of its Restricted Subsidiaries other than the Guarantors; provided that, if such Other Term Loans rank junior in right of security with the Term Loans, such Other Term Loans will be established as a separate Tranche from the Term Loans. In the case of any junior lien Incremental Term Loans, such Indebtedness shall be subject to the terms of an Approved Intercreditor Agreement. (cd) The Borrowers and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Amendment and such other customary documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender. Any Incremental Revolving Commitment established hereunder shall have terms identical to (and shall form part of) such Class of Revolving Commitments with the Latest Maturity Date existing on the Restatement Effective Date, it being understood that the Borrowers and the Administrative Agent may make (without the consent of or notice to any other party) any amendment to reflect such increase in the Revolving Commitments. (e) Notwithstanding the foregoing, ~~but subject to the last paragraph of Section 4.2 and Section 14.13(e),~~ no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section ~~2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment~~2.20 unless, ~~no Event of Default shall exist and~~ subject to Section 1.04, at the time that any such Incremental Term Loan or Incremental Revolving Commitment is made (and after giving effect thereto), (A) no Event of Default shall ~~be continuing; (ii)~~ exist or would exist after giving effect thereto (including on a pro forma basis) and (B) the representations and warranties of the Borrowers set forth in this Agreement shall be true and correct in all material respects (other than to the extent qualified by materiality or “Material Adverse Effect”, in which case, such representations and warranties shall be true and correct); provided that, in the event that the tranche of Incremental Term ~~Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references~~ Loans is used to ~~“the date of the making of such Loan”~~ finance an acquisition or ~~similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except,~~ other Investment permitted by this Agreement and to the extent the ~~proceeds~~ Incremental Term Lenders participating in such tranche of ~~the~~ Incremental Term Loans ~~are to be used to finance an Acquisition~~agree, ~~such representations~~ the foregoing clause (B) shall be limited to customary “specified representations” and those representations included in the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes agreement related to such ~~legal opinion resulting from a change in law, change in fact~~ acquisition or ~~change to counsel’s form of opinion reasonably satisfactory~~ other Investment that are material to the ~~Agent~~interests of the Lenders and only to the extent that Parent or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments and/or Incremental Revolving Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Administrative Agent with the ~~applicable Borrower’s~~ Borrowers’ consent (not to be unreasonably withheld, delayed or conditioned) and furnished to the other parties hereto. Each Incremental Amendment shall be delivered to the Administrative Agent, together with such documents (including local law confirmations as to Collateral) and legal opinions substantially consistent with those delivered on the Restatement Effective Date (other than changes to such legal opinions resulting from a Change in Law, change in fact or change to counsel’s form of opinion) as to such matters as are reasonably requested by the Administrative Agent. (df) The Incremental Amendment may, without the consent of ~~Parent Borrower~~the Administrative Agent, ~~or any other Loan Party, Agent~~ the Collateral Trustee or Lenders, effect such amendments to this Agreement and the other ~~Financing Agreements~~ Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the ~~Parent Borrower~~Borrowers, to effect the provisions of this Section ~~2.8~~2.20, including those required by the Incremental Term Loan Lenders or Incremental Revolving Lenders, as applicable (and not adverse to any existing Lender after giving effect to the Incremental Loans made pursuant to such amendment). The ~~applicable~~ Borrowers will use the proceeds of the Incremental Term Loans and Incremental Revolving Loans for ~~any purpose not prohibited by this Agreement~~their general corporate purposes (including loans and other Investments in Parent and its Subsidiaries as permitted herein). Incremental Term Loans and Incremental Revolving Commitments may be made by any existing Lender (but ~~each~~ no existing Lender will ~~not~~ have an any obligation to make a or provide any portion of any Incremental Term ~~Loan~~Loan or Incremental Revolving Commitments) or by any other bank or other financial institution; provided that any ~~such~~ bank or financial institution (including any new or existing Lenders) providing Incremental Revolving Commitments shall be reasonably satisfactory to the ~~Agent~~ Administrative Agent, each Issuing Bank and the ~~Parent Borrower~~Borrowers. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. . (g) This Section ~~2.8~~ 2.20 shall supersede any provisions in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.02 to the contrary.

Appears in 1 contract

Samples: Amendment and Restatement Agreement (Endo International PLC)

Incremental Credit Extensions. (a) ~~One~~ The Borrower may at any time or more Borrowers (which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested) may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders) from time to time after the ~~Escrow Release~~ Closing Date, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make a copy of such notice available to each of the Lenders), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which, in each case, may include any~~ additional tranches or additions to an existing ~~Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount~~ tranche of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective term loans (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”) in an amount (when taken together with any Alternative Incremental Indebtedness issued or incurred prior to, or that will be issued or incurred concurrently with, the incurrence of the Incremental Term Loans) not to exceed $250,000,000, so long as the Senior Secured Leverage Ratio calculated on a Pro Forma Basis shall not be greater than 3.25 to 1.0 (calculated as if such Incremental Term Loans had been outstanding on such last day and as though any unsecured Alternative Incremental Indebtedness were secured Alternative Incremental Indebtedness), plus (z) the aggregate amount of all voluntary prepayments of Term Loans pursuant to Section 2.12(a) (the “Maximum Incremental Facility Amount”), provided that the Borrower shall have delivered a certificate of a Responsible Officer certifying that the Maximum Incremental Facility Amount has not been exceeded, together with reasonably detailed calculations with respect thereto (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.01(a) or 6.01(b) and Section 6.02(a), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the Maximum Incremental Facility Amount). (b) The ~~proceeds~~ following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans shall rank pari passu in right of ~~any~~ payment and of security with all other Term Loans; (ii) the maturity date of such Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to earlier than the ~~Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental~~ Original Term Loan ~~Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans~~Maturity Date; ~~provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and~~ (iii) ~~of this proviso, be determined by~~ the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time amortization requirements for such Incremental Term Loans ~~are established~~may differ from that of other outstanding Initial Term Loans, ~~and, (iii)~~ provided the Weighted Average Life to Maturity of ~~any~~ such Incremental Term Loans ~~shall be no shorter~~ is not less than the remaining Weighted Average Life to Maturity of the then outstanding Initial Term B Loans; ~~provided further that~~(iv) such Incremental Term Loans, to the extent secured, shall not be secured by any Lien on any asset of the Borrower or the Guarantors that does not also secure the then outstanding applicable Term Loans; (v) any Incremental Term Loans may rank junior in right of security with ~~respect~~ the other Term Loans or be unsecured, and if such Incremental Term Loans rank junior in right of security or are unsecured, the Incremental Facility pursuant to ~~any~~ which such Incremental Term Loans are extended shall be established as a separate Facility from the then existing Term Loan Facility; (vi) the covenants, events of default and guarantees of such Incremental Term Loans, if not consistent with the ~~Effective Yield in respect~~ terms of ~~any such Incremental Term Loan exceeds~~ the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Initial Term Loans, shall be on customary market terms for Indebtedness of such type (as determined by the Borrower in good faith) (provided, that the financial maintenance covenant on the then outstanding Term Loans shall be amended to provide the Lenders the benefit of any financial maintenance covenant of such Incremental Term Loans that is in addition to or more restrictive in any material manner than the financial maintenance covenant on the then outstanding Term Loans) and (vii) the applicable yield relating to any term loans incurred pursuant to such Incremental Amendment (each facility thereunder, the “Incremental Facility”), shall not exceed the applicable yield with respect to the Initial Term Loans by more than 0.50% per annum unless the yield applicable to the Initial Term Loans is increased so that the yield applicable to the applicable Incremental Facility does not exceed the yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that in determining the yield applicable to the Initial Term Loans and the applicable Incremental Facility, (A) all upfront or similar fees or original issue discount (amortized over the shorter of (1) the Weighted Average Life to Maturity of such loans and (2) four years) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included, (B) if the Incremental Facility includes an interest rate floor greater than the applicable interest rate floor under the Initial Term Loans, such differential between interest rate floors shall be equated to the applicable interest rate margin for purposes of ~~this proviso. The~~ determining whether an increase to the interest rate margin under the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor in the Initial Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case, the interest rate floor (but not the interest rate margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between interest rate floors and (C) structuring, arrangement or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Term Loans shall ~~have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans~~be excluded. (c) ~~Notwithstanding~~ Each notice from the ~~foregoing,~~ Borrower pursuant to this Section 2.17 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Term Loans and (ii) the date on which the relevant increase is requested to become effective (the “Increase Amount Date”). Incremental Term Loans may be made by any existing Lender (but ~~subject~~ no existing Lender shall have any obligation to ~~the last paragraph of Section 4.2 and Section 14.13(e), no~~ make any Incremental Term Loan ~~Commitment~~ except to the extent that it has agreed to do so pursuant to an Incremental Amendment) or by any other Additional Lender (the Lenders or Additional Lenders making such Incremental Term Loans, collectively, the “Incremental Lenders”). Commitments in respect of Incremental Term Loans shall become ~~effective~~ Commitments under this ~~Section 2.8 unless~~ Agreement pursuant to an amendment (ian “Incremental Amendment”) ~~both at~~ to this Agreement and, as appropriate, the ~~time of~~ other Loan Documents, executed by the Borrower, each Incremental Lender and the Administrative Agent. The Incremental Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Incremental Lenders providing the relevant Incremental Terms Loans; provided that to the extent such terms and documentation are not consistent with this Agreement in any ~~such request and upon~~ material respect (except to the extent permitted by the foregoing clauses), they shall be reasonably satisfactory to the Administrative Agent. The effectiveness of any Incremental ~~Amendment, no Event~~ Amendment shall be subject to the satisfaction (or waiver) on the date thereof of ~~Default shall exist and at~~ each of the ~~time that any such Incremental Term Loan is made~~ conditions set forth in Section 4.01 (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term Loan Commitments, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of for purposes thereof the making ~~of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds~~ of the Incremental Term Loans ~~are~~ shall be deemed to be ~~used to finance an Acquisition~~a Request for Credit Extension) and, ~~such representations shall be limited~~ to the ~~Specified Representations and Specified Acquisition Agreement Representations) and (iii)~~ extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent ~~shall have received~~ of customary legal opinions, board ~~resolutions and~~ resolutions, officers’ certificates and a solvency certificate or representation, in each case consistent with those delivered on the ~~Original~~ Closing Date under Section 4.02 (other than changes to such legal ~~opinion~~ opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent), and customary reaffirmation agreements. ~~The Agent shall promptly notify each Lender as~~ Notwithstanding anything to the ~~effectiveness of each Incremental Amendment. Each of~~ contrary above, in connection with the ~~parties hereto hereby agrees that, upon the effectiveness~~ incurrence of any Incremental ~~Amendment~~Term Loans, ~~this Agreement~~ if the proceeds of such Incremental Term Loans are to be used, in whole or in part, by the Borrower or any other Loan Party to finance, in whole or in part, a Permitted Acquisition or other permitted Investment, then (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increase Amount Date shall be ~~amended~~ (x) the Specified Representations (conformed as necessary for such Permitted Acquisition or other permitted Investment) and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business in the applicable acquisition agreement as are material to the ~~extent (~~interests of the Lenders, but only to the ~~extent) necessary to reflect~~ extent that the ~~existence and terms~~ Borrower (or any Affiliate of the ~~Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by~~ Borrower) has the ~~Agent with~~ right to terminate the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion obligations of the ~~Agent~~ Borrower or such Affiliate under such acquisition agreement or not consummate such acquisition as a result of a breach of such representations or warranties in such acquisition agreement and ~~the Parent Borrower~~(B) no Event of Default under Section 8.1(a), (f) or (g) would exist after giving effect to ~~effect the provisions of this Section 2.8~~such incurrence (“Permitted Acquisition Provisions”). The ~~applicable Borrowers~~ Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. . (d) Any Incremental ~~Term Loans~~ Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be ~~made by any existing Lender (but each existing Lender will not have an obligation to make a portion~~ necessary or appropriate, in the reasonable opinion of ~~any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to~~ the Administrative Agent and the ~~Parent~~ Borrower, to effect the terms thereof, to the extent such terms are permitted under this Section 2.17. ~~No Lender~~ Notwithstanding the foregoing, each of the Administrative Agent and the Collateral Agent shall have the right (but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.17 and, if either the Administrative Agent or the Collateral Agent seeks such advice or concurrence, it shall be ~~obligated~~ permitted to ~~provide~~ enter into such amendments with the Borrower in accordance with any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower unless and until it shall have received such advice or concurrence; provided, however, that whether or not there has been a request by the Administrative Agent or the Collateral Agent for any such advice or concurrence, all such amendments entered into with the Borrower by the Administrative Agent or the Collateral Agent hereunder shall be binding and conclusive on the Lenders. Without limiting the foregoing, in connection with any Incremental ~~Term Loans unless it~~ Amendment and as required by applicable Law to protect the Collateral Agent’s perfected security interest thereon (as reasonably determined by the Collateral Agent), the respective Loan Parties shall (at their expense) amend (and the Collateral Agent is hereby directed to amend) any Mortgage that has a maturity date prior to the then Latest Maturity Date so ~~agrees.~~ that such maturity date is extended to the Latest Maturity Date after giving effect to such Incremental Amendment (or such later date as may be advised by local counsel to the Collateral Agent). (e) This Section ~~2.8~~ 2.17 shall supersede any provisions in Section ~~2.7~~ 2.14, 2.15 or ~~12.3~~ 10.08 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (YRC Worldwide Inc.)

Appears in 1 contract

Samples: Credit Agreement (Res Care Inc /Ky/)

Incremental Credit Extensions. (a) ~~One~~ The Borrowers may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Restatement Effective Date, by ~~written~~ notice by the Parent Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ one or more ~~Incremental Term Lenders (which,~~ increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Term Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which shall be in minimum increments of $1,000,000 and~~ each such increase, a ~~minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the~~ “~~Increased Amount Date~~Revolving Commitment Increase”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment~~Amendment referred to below, no Default under Section 8.01(a) or Event of Default shall ~~exist~~ exist. Each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than a Dollar Amount of $25,000,000 (provided that such amount may be less than a Dollar Amount of $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Revolving Commitment Increases shall not exceed (x) $100,000,000 less (y) the amount of all Incremental Replacement Secured Notes issued pursuant to Section 7.03(cc). Each notice from the Parent Borrower pursuant to this Section shall set forth the requested amount and at proposed terms of the ~~time~~ relevant Revolving Commitment Increases. Revolving Commitment Increases may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.14 and otherwise on terms reasonably acceptable to the Administrative Agent, or by any other lender (any such other lender being called an “Additional Lender”), provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld) to such Lender’s or Additional Lender’s providing such Revolving Commitment Increase if such consent would be required under Section 10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Lender, an increase in such Lender’s Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental ~~Term~~ Amendment”) to this Agreement and, as appropriate, the other Loan ~~is made (~~Documents, executed by the Borrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and ~~after giving~~ the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders or Loan Parties, effect ~~thereto) no Event~~ such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of ~~Default~~ the Administrative Agent and the Parent Borrower, to effect the provisions of this Section. The effectiveness of any Incremental Amendment shall be ~~continuing; (ii) after giving effect~~ subject to ~~such Incremental Term Loan Commitments,~~ the satisfaction on the date thereof of each of the conditions of set forth in Section ~~4.2(a) shall be satisfied~~ 4.02 (it being understood that all references to “the date of ~~the making of~~ such ~~Loan~~Credit Extension” or similar language in such Section ~~4.2(a)~~ 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) ~~(except, to~~ and such other conditions as the ~~extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations~~ parties thereto shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agentagree. The ~~Agent~~ Borrowers shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the ~~Incremental Term Loans~~ Revolving Commitment Increases for any purpose not prohibited by this Agreement~~. Incremental Term Loans may~~ . (b) Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.14, (x) each Lender immediately prior to such increase will automatically and without further act be ~~made by any existing~~ deemed to have assigned to each Lender ~~(but each existing Lender will not have an obligation to make~~ providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Lenders represented by such Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any ~~Incremental Term Loan)~~ Revolving Credit Loans denominated in Dollars outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any ~~other bank or other financial institution; provided~~ Lender in accordance with Section 3.05. In addition, if there are any Revolving Credit Loans denominated in Euro outstanding on the date of any Revolving Commitment increase, then (i) each Revolving Credit Lender with Euro Funding Capacity immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Commitment Increase Lender with Euro Funding Capacity and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Revolving Credit Lender’s Euro Loans such that ~~any~~ after giving effect to all such ~~bank or financial institution shall be reasonably satisfactory~~ assignments, each Revolving Credit Lender with Euro Funding Capacity (including each Revolving Commitment Increase Lender with Euro Funding Capacity) will have the percentage of Revolving Credit Loans denominated in Euro then outstanding equal to its pro rata (solely among Revolving Credit Lenders with Euro Funding Capacity) percentage of all Euro Loans then outstanding and (ii) after giving effect to the assignments described in clause (i) of this sentence, each Participating Euro Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Revolving Commitment Increase Lender that will be a Participating Euro Lender, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed a portion of such Participating Euro Lender’s Euro Participations such that, after giving effect all such assignments, each Participating Euro Lender (including each Revolving Commitment Increase Lender that is a Participating Euro Lender) will have the percentage of Euro Participations then outstanding equal to its pro rata (solely among Participating Euro Lenders) percentage of all Euro Participations then outstanding. The Administrative Agent and the ~~Parent Borrower. No Lender~~ Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~be obligated~~ not apply to ~~provide any Incremental Term Loans unless it so agrees.~~ the transactions effected pursuant to the immediately preceding sentence. (c) This Section ~~2.8~~ 2.14 shall supersede any provisions in Section ~~2.7~~ 2.13 or ~~12.3~~ 10.01 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Avaya Inc)

Incremental Credit Extensions. (a) ~~One~~ The US Borrower may at any time or ~~more Borrowers (which shall include all existing Borrowers with respect~~ from time to ~~an existing Class of Term B Loans for which Incremental Term Commitments are requested) may~~time after the Closing Date, by ~~written~~ notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the First-Lien Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ (i) one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective term loans (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental Term Loans”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments~~ ) or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) ~~and (iii) of this proviso, be determined by~~ one or more increases in the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date amount of the ~~then existing Term Loans or~~ Revolving Credit Commitments (z) each such ~~other terms as shall be reasonably satisfactory to the Agent~~increase, ~~(ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established,~~ a “Revolving Commitment Increase” and, ~~(iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that,~~ together with ~~respect to~~ any Incremental Term Loans, ~~if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so~~ a “Credit Increase”); provided that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (ix) both at the time of any such request and upon the effectiveness of any Incremental ~~Amendment~~Amendment referred to below, no Default or Event of Default shall exist and ~~at the time that any such Incremental Term Loan is made~~ (~~and after giving effect thereto) no Event of Default shall be continuing; (ii~~y) after giving effect to such Credit Increase and the use of the proceeds thereof, the Consolidated First-Lien Leverage Ratio shall be less than or equal to the Consolidated First-Lien Leverage Ratio on the Closing Date. Each Credit Increase shall be in an aggregate principal amount that is not less than $100,000,000 (or such lower amount that either (A) represents all remaining availability under the limit set forth in the next sentence or (B) is acceptable to the Administrative Agent). Notwithstanding anything to the contrary herein, the aggregate amount of the Credit Increases shall not exceed $750,000,000. Each Incremental Term Loan ~~Commitments~~(1) shall rank pari passu in right of payment and of security with the Revolving Credit Loans and the then-existing Term Loans, (2) shall not mature earlier than the ~~conditions~~ Term Loan Maturity Date, (3) shall have an average life to maturity not shorter than the remaining weighted average life to maturity of ~~Section 4.2(a~~the then-existing Term Loans and (4) shall be ~~satisfied~~ treated in the same manner as the Term Loans for purposes of Section 2.13(e). Each notice from the US Borrower pursuant to this Section 2.24 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Term Loans may be made, and Revolving Commitment Increases may be provided, by any existing First-Lien Lender or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”); provided that the relevant Persons under Section 9.04(b) shall have consented (in each case, not to be unreasonably withheld or delayed) to such First-Lien Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, if such consent would be required under Section 9.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such First-Lien Lender or Additional Lender. (b) Commitments in respect of Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by each Borrower, each First-Lien Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the US Borrower, to effect the provisions of this Section 2.24. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the conditions set forth in Section 4.01 (it being understood that all references to “the date of ~~the making of~~ such ~~Loan~~Credit Event” or similar language in such Section ~~4.2(a)~~ 4.01 shall be deemed to refer to the effective date of such Incremental Amendment) (except, to the extent the proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent). The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment US Borrower may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of ~~the~~ Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any ~~Incremental Term Loans~~ Credit Increases unless it so ~~agrees~~agrees in its sole discretion. Upon each increase in the Revolving Credit Commitments pursuant to this Section, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.16. (c) This Section ~~2.8~~ 2.24 shall supersede any provisions in Section ~~2.7~~ 2.18 or ~~12.3~~ 9.08 to the contrary.

Appears in 1 contract

Samples: Credit Agreement (Univision Communications Inc)

Incremental Credit Extensions. (a) ~~One or more Borrowers~~ (~~which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which Incremental Term Commitments are requested~~i) ~~may, by written notice to the Agent (whereupon the Agent shall promptly deliver a copy to each of the Lenders)~~ At any time and from time to time after the ~~Escrow Release~~ Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to each of the Lenders), request ~~Incremental Term Loan Commitments, as applicable, in an aggregate amount not~~ to ~~exceed the Incremental Amount from~~ effect one or more additional revolving credit facility tranches (“Incremental ~~Term Lenders (which,~~ Revolving Loans”) or increases in ~~each case, may include any existing Lender) willing to provide such Incremental Term Loans, as~~ the ~~case may be, in their own discretion. Such notice shall set forth (i) the~~ aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”; together with the Incremental ~~Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount)~~Revolving Loans, (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans with interests rates and/or amortization and/or maturity and/or other terms different from the Term B Loans (“Incremental ~~Term Loans~~Revolving Facilities”~~). The proceeds of any Incremental Term Loans shall not be used to make Restricted Payments or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b~~) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loansfrom Additional Revolving Lenders; provided that (i) except as to pricing, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms as shall be reasonably satisfactory to the Agent, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of ~~any~~ each such request and upon the effectiveness of ~~any~~ each Incremental Revolving Facility Amendment, ~~no Event of Default shall exist and at the time that any such Incremental Term Loan is made~~ (~~and after giving effect thereto~~A) no Event of Default shall have occurred and be ~~continuing;~~ continuing or shall result therefrom, (iiB) ~~after giving~~ the Borrower shall be in compliance on a Pro Forma Basis with the covenants contained in Sections 6.12 and 6.13 recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower, (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to ~~such Incremental Term Loan Commitments~~the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(c), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the relevant period), (D) in the case of a Revolving Commitment Increase, the conditions of Section 4.2(a) shall be satisfied (it being understood that all references to “the date of the making of such Loan” or similar language in such Section 4.2(a) shall be deemed to refer to the effective maturity date of such Revolving Commitment Increase shall be the Revolving Maturity Date, such Revolving Commitment Increase shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and such Revolving Commitment Increase shall be on the same terms governing the Revolving Commitments pursuant to this Agreement, (E) the interest rate margins and maturity applicable to any Incremental ~~Amendment~~Revolving Loans shall be determined by the Borrower and the lenders thereunder, (F) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders with the applicable Incremental Revolving Facilities and (~~except~~G) any Incremental Revolving Loan may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the Additional Revolving Lenders; provided that to the extent ~~the proceeds of the Incremental Term Loans~~ such terms and documentation are to be used to finance an Acquisition, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates not consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement ~~shall be amended~~ (except to the extent permitted by clause (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term LoanE) or ~~by any other bank or other financial institution; provided that any such bank or financial institution~~ (G) above), they shall be reasonably satisfactory to the ~~Agent and the Parent Borrower. No~~ Administrative Agent; provided, further, that no Issuing Bank or Swingline Lender shall be ~~obligated~~ required to ~~provide~~ act as “issuing bank” or “swingline lender” under any such Incremental Revolving Facility without its written consent. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Revolving Facilities, (ii) the aggregate principal amount of all Term ~~Loans unless it so agrees~~Commitment Increases incurred after the Effective Date and (iii) the aggregate principal amount of all Additional Notes issued after the Effective Date pursuant to Section 6.01(a)(xxiii) shall not exceed the sum of (x) $150,000,000 and (y) if on a Pro Forma Basis, the First Lien Leverage Ratio is less than or equal to 4.00 to 1.00 (provided that for purposes of calculating the First Lien Leverage Ratio any Revolving Commitment Increase shall be assumed to be fully drawn), up to an additional $150,000,000 (the “Incremental Cap”). ~~This Section 2.8~~ Each Incremental Revolving Facility shall ~~supersede any provisions~~ be in ~~Section 2.7 or 12.3 to~~ a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the ~~contrary~~remaining availability under the aggregate principal amount of Incremental Revolving Facilities set forth above.

Appears in 1 contract

Samples: Credit Agreement (Interactive Data Corp/Ma/)

Incremental Credit Extensions. (a) ~~One~~ Until the eighteen (18) month anniversary of the Closing Date and so long as (x) the Delayed Draw Term Commitments have been fully funded prior to, or ~~more Borrowers~~ at the time of, the addition of any Incremental Facility and (~~which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which~~ y) the Incremental Term ~~Commitments are requested)~~ Loan Conditions shall have been satisfied, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental~~ to increase the amount of Term ~~Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ Loans or add one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans ~~with interests rates and/or amortization and/or maturity and/or other terms different from~~ (any such Term Loans or additional tranche of term loans, the ~~Term B Loans (~~“Incremental Term Loans”). ~~The proceeds~~ Notwithstanding anything to contrary herein, the aggregate amount of all Incremental Facilities (determined at the time of incurrence) shall not exceed $100,000,000. Each Incremental Facility shall be in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above or is incurred in connection with a Permitted Acquisition. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of the other Obligations under this Agreement. (b) Any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the then-existing Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the Borrower and the lenders thereunder (provided that, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan exceeds the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the then-existing Term Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any then-existing Term Loans immediately prior to the effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided that, if the Incremental Term Loans include an interest rate floor greater than the applicable interest rate floor under such Term -77- Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term Loans shall be required, but only to the extent an increase in the interest rate floor in such Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Rate) applicable to such Term Loans shall be increased to the extent of such differential between interest rate floors), (iii) any Incremental Term Loan shall not have a final maturity date earlier than the Maturity Date applicable to the then-existing Term Loans, (iv) any Incremental Term Loan shall not have a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the then-existing Term Loans, (v) any Incremental Term Loans shall ~~not~~ be ~~used to make Restricted Payments~~ secured only by the Collateral on an equal priority basis, (vi) except as otherwise required or prepayments of Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise. (b) The applicable Borrowers and each Incremental Term Lender shall execute and deliver to the Agent an Incremental Amendment and such other documentation as the Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Lender. Each Incremental Amendment shall specify the terms of the applicable Incremental Term Loans; provided that permitted in clauses (i) ~~except as to pricing, amortization and final maturity date~~ through (~~which shall, subject to clause (ii~~v) ~~and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion)~~above, the Incremental Term Loans shall have no more restrictive terms, when taken as a whole, than the Term Loans except (x) if the Term Lenders holding the Term Loans also receive the benefit of such restrictive terms, (y) such terms are not effective until the Latest Maturity Date of the then existing Term Loans or (z) such other terms ~~as shall be reasonably satisfactory to the Agent, (ii) the final maturity date~~ of any Incremental Term Loans shall be ~~no earlier than~~ on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or the Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date at the time such Incremental Term Loans are established, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield then in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both effect at the time of ~~any~~ such ~~request and upon~~ incurrence, be substantially consistent with the ~~effectiveness~~ terms of ~~any Incremental Amendment, no Event~~ then-existing Term Loans; provided that such terms may be inconsistent with the terms of ~~Default shall exist and at~~ the ~~time that any such Incremental~~ then existing Term ~~Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect~~ Loans if reasonably satisfactory to ~~such Incremental Term Loan Commitments,~~ the ~~conditions of Section 4.2(a) shall be satisfied~~ Administrative Agent (it being understood that ~~all references to “~~no consent shall be required from the ~~date~~ Administrative Agent for terms or conditions that are more restrictive than the terms or conditions of the ~~making~~ then-existing Term Loans if the Lenders receive the benefit of such ~~Loan”~~ terms or ~~similar language in such Section 4.2(a) shall be deemed to refer~~ conditions through their addition to the ~~effective date of such Incremental Amendment) (except,~~ then-existing Term Loans or to the extent that they apply solely to periods following the ~~proceeds of the Incremental Term Loans are to be used to finance an Acquisition, such representations shall be limited~~ Maturity Date with respect to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental then-existing Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will not have an obligation to make a portion of any Incremental Term Loan) or by any other bank or other financial institutionLoans); provided that any such bank or financial institution shall be reasonably satisfactory to the Agent and the Parent Borrower. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees. This Section 2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary.and

Appears in 1 contract

Samples: Term Loan Credit Agreement (RumbleOn, Inc.)

Incremental Credit Extensions. (a) ~~One~~ Until the eighteen (18) month anniversary of the Closing Date and so long as (x) the Delayed Draw Term Commitments have been fully funded prior to, or ~~more Borrowers~~ at the time of, the addition of any Incremental Facility and (~~which shall include all existing Borrowers with respect to an existing Class of Term B Loans for which~~ y) the Incremental Term ~~Commitments are requested)~~ Loan Conditions shall have been satisfied, subject to the terms and conditions set forth herein, the Borrower may, by written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders~~) from time to time after the Escrow Release Date~~), request ~~Incremental~~ to increase the amount of Term ~~Loan Commitments, as applicable, in an aggregate amount not to exceed the Incremental Amount from~~ Loans or add one or more Incremental Term Lenders (which, in each case, may include any existing Lender) willing to provide such Incremental Term Loans, as the case may be, in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Term Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $25,000,000 or equal to the remaining Incremental Amount), (ii) the date on which such Incremental Term Loan Commitments are requested to become effective (the “Increased Amount Date”), and (iii) whether such Incremental Term Loan Commitments are to be Term Commitments or commitments to make term loans ~~with interests rates and/or amortization and/or maturity and/or other terms different from~~ (any such Term Loans or additional tranche of term loans, the ~~Term B Loans (~~“Incremental Term Loans”). ~~The proceeds~~ Notwithstanding anything to contrary herein, the aggregate amount of ~~any~~ all Incremental ~~Term Loans~~ Facilities (determined at the time of incurrence) shall not exceed $100,000,000. Each Incremental Facility shall be ~~used to make Restricted Payments~~ in an integral multiple of $1,000,000 and be in an aggregate principal amount that is not less than $10,000,000, provided that such amount may be less than the applicable minimum amount if such amount represents all the remaining availability hereunder as set forth above or ~~prepayments~~ is incurred in connection with a Permitted Acquisition. Each Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing, all of ~~Subordinated Indebtedness pursuant to Section 10.6, Section 10.11 or otherwise~~the other Obligations under this Agreement. (b) ~~The applicable Borrowers and each~~ Any Incremental Term ~~Lender~~ Loans (i) for purposes of prepayments, shall ~~execute~~ be treated substantially the same as (and ~~deliver~~ in any event no more favorably than) the then-existing Term Loans, (ii) shall have interest rate margins and (subject to clauses (iii) and (iv)) amortization schedule as determined by the ~~Agent~~ Borrower and the lenders thereunder (provided that, if the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental ~~Amendment and such other documentation as the Agent shall reasonably specify~~ Term Loans (but excluding customary arrangement or commitment fees payable to ~~evidence the~~ any arranger or bookrunner or their Affiliates in connection therewith)) relating to any Incremental Term Loan ~~Commitment of~~ exceeds the Applicable Rate (which, for such ~~Incremental~~ purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all Lenders providing the then-existing Term ~~Lender. Each Incremental Amendment shall specify~~ Loans (but excluding customary arrangement or commitment fees payable to any arranger, bookrunner or agent or their Affiliates in connection therewith)) relating to any then-existing Term Loans immediately prior to the ~~terms~~ effectiveness of the applicable Incremental Facility Amendment by more than 0.50%, the Applicable Rate relating to such Term ~~Loans~~Loans shall be adjusted to be equal to the Applicable Rate (which, for such purposes only, shall be deemed to include all upfront or similar fees or original issue discount (with original issue discount being equated to interest based on an assumed four-year life to maturity) payable to all lenders providing such Incremental Term Loans (but excluding customary arrangement or commitment fees payable to any arranger or bookrunner or their Affiliates in connection therewith)) relating to such Incremental Term Loans minus 0.50%; provided ~~that (i) except as to pricing~~that, amortization and final maturity date (which shall, subject to clause (ii) and (iii) of this proviso, be determined by the applicable Borrowers and the Incremental Term Lenders in their sole discretion), if the Incremental Term Loans ~~shall have no more restrictive terms, when taken as a whole,~~ include an interest rate floor greater than the applicable interest rate floor under such Term Loans, such differential between interest rate floors shall be equated to the Applicable Rate for purposes of determining whether an increase to the Applicable Rate under such Term Loans ~~except (x) if~~ shall be required, but only to the ~~Term Lenders holding~~ extent an increase in the interest rate floor in such Term Loans ~~also receive~~ would -76- (c) Each notice from the ~~benefit of such restrictive terms, (y) such~~ Borrower pursuant to this Section 2.12 shall set forth the requested amount and proposed terms ~~are not effective until the Latest Maturity Date~~ of the ~~then~~ relevant Incremental Term Loans. Any additional bank, financial institution, existing Lender or other Person that elects to extend Incremental Term Loans ~~or (z) such other terms as~~ shall be reasonably satisfactory to the Borrower and the Administrative Agent (any such bank, financial institution, existing Lender or other Person being called an “Additional Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, such Additional Lender and the Administrative Agent~~, (ii) the final maturity date of any~~ ; provided that no Incremental Term Loans ~~shall~~ may be ~~no earlier than the Latest Maturity Date at the time such Incremental Term Loans are established~~provided by an Affiliated Lender unless, and, (iii) the Weighted Average Life to Maturity of any Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to Maturity of the Term B Loans; provided further that, with respect to any Incremental Term Loans, if the Effective Yield in respect of any such Incremental Term Loan exceeds the Applicable Margin of any Term B Loans by more than 25 basis points, such Applicable Margin shall be increased so that the Effective Yield in respect of such Incremental Term Loan is no more than 25 basis points higher than the Effective Yield for such Term B Loans and if the lowest permissible Eurodollar Rate is greater than 1.00% or the lowest permissible Base Rate is greater than 2.00% for such Incremental Term Loan, the difference between such “floor” and 1.00% in the case of Eurodollar Rate Incremental Term Loans (or 2.00% in the case of Base Rate Incremental Term Loans, shall be equated to interest rate margin for purposes of this proviso. The Incremental Term Loans shall have the same guarantees as and rank pari passu in right of payment and security with the Term B Loans. (c) Notwithstanding the foregoing, but subject to the last paragraph of Section 4.2 and Section 14.13(e), no Incremental Term Loan Commitment shall become effective under this Section 2.8 unless (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment, no Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Event of Default shall be continuing; (ii) after giving effect to such Incremental Term ~~Loan Commitments~~Loans, the ~~conditions~~ aggregate Outstanding Amount of ~~Section 4.2(a~~all Term Loans that are held by Affiliated Lenders (other than Affiliated Debt Funds) ~~shall be satisfied (it being understood that all references to “the date~~ does not exceed 25% of the ~~making~~ aggregate Outstanding Amount of the Term Loans then outstanding. Existing Lenders as of such ~~Loan”~~ time shall first be offered an opportunity to provide or ~~similar language~~ participate in such ~~Section 4.2(a) shall be deemed~~ additional tranches of loans or increases to ~~refer to~~ existing tranches of loans on a pro rata basis (or less than pro rata basis at the ~~effective date~~ election of each existing Lender); provided, that each existing such ~~Incremental Amendment) (except~~Lender shall, to the extent that it intends to provide or participate in such additional tranches of loans or increases to existing tranches of loans, respond as soon as reasonably practicable and in any event within fifteen (15) Business Days after the ~~proceeds of~~ Borrower makes such offer to such Lender (and if no such response is received by the ~~Incremental Term Loans are to be used to finance an Acquisition~~Borrower within such period, such representations shall be limited to the Specified Representations and Specified Acquisition Agreement Representations) and (iii) the Agent shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agent. The Agent shall promptly notify each Lender as to the effectiveness of each Incremental Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment, this Agreement shall be amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitments evidenced thereby. Any such deemed amendment may be memorialized in writing by the Agent with the applicable Borrower’s consent (not to be unreasonably withheld) and furnished to the other parties hereto. (d) The Incremental Amendment may, without the consent of Parent Borrower, or any other Loan Party, Agent or Lenders, effect such amendments to this Agreement and the other Financing Agreements as may be necessary or appropriate, in the reasonable opinion of the Agent and the Parent Borrower, to effect the provisions of this Section 2.8. The applicable Borrowers will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. Incremental Term Loans may be made by any existing Lender (but each existing Lender will ~~not~~ be deemed to have ~~an obligation~~ declined the opportunity to ~~make a portion~~ provide or participate in such additional tranches of ~~any Incremental Term Loan)~~ loans or ~~by any other bank or other financial institution; provided that any such bank or financial institution shall be reasonably satisfactory~~ increases to ~~the Agent and the Parent Borrower~~existing tranches of loans). No Lender shall be obligated to provide any Incremental Term ~~Loans~~ Loans, unless it so agrees. ~~This~~ Term Commitments in respect of any Incremental Term Loans may become Term Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section ~~2.8 shall supersede any provisions in Section 2.7 or 12.3 to the contrary~~2.

Appears in 1 contract

Samples: Term Loan Credit Agreement (RumbleOn, Inc.)

Common use of Incremental Credit Extensions Clause in Contracts