Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 3 contracts

Samples: Term Loan Credit Agreement (PHI Group, Inc./De), Term Loan Credit Agreement (Phi Inc), Credit Agreement

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Fifth Restatement Effective Date, by written notice to the Administrative Agent ~~from time to time~~as provided below, request one or more Lenders (including Persons who shall become Incremental ~~Loan Commitments~~Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, ~~in an~~ the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to ~~exceed the Incremental Amount~~ Section 7.01(m) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (ii) each Person which the Borrower shall request to make an Incremental Loan ~~Commitments~~ shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are ~~established~~Tranche A Term Loans, ~~from one~~ the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or ~~more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Persons to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)Loans, (iix) the date on which such Incremental Loans shall be made, (y) the Incremental Loan ~~Commitments are requested to become effective~~ Maturity Date and the Incremental Loan Principal Payment Dates (~~which shall not be less than 10 Business Days nor more than 60 days after the date of~~ if any) for such ~~notice),~~ Incremental Loans and (~~iii~~z) ~~whether~~ the Applicable Margin that will apply to such Incremental ~~Loan Commitments are commitments~~ Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make ~~additional Loans or commitments to make term loans~~ such Incremental Loans, together with ~~terms different from~~ such other information reasonably requested by the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders Administrative Agent in connection therewith. ~~The Borrower and each~~ Amounts prepaid in respect of Incremental ~~Term~~ Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall ~~execute~~ be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and ~~deliver~~ delivery to the Administrative Agent of an Incremental Loan ~~Assumption Agreement and such other documentation as~~ Amendment (in form reasonable satisfactory to the Administrative ~~Agent shall reasonably specify to evidence~~ Agent) by such Person or Persons, the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms~~ Borrower and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other LoansAgent; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to that the effectiveness of ~~each~~ such Incremental Loan ~~Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement~~ Amendment shall be ~~deemed amended~~ subject to the ~~extent (but only to the extent) necessary to reflect the existence and terms~~ satisfaction of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date each of ~~such effectiveness,~~ the conditions set forth in this Section ~~4.02~~ and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be ~~satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary~~ deemed to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, refer to the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be ~~ratably increased by the aggregate principal amount~~ deemed to be a separate series (each a “Series”) of ~~such~~ Incremental Loans ~~and shall be further increased~~ for all ~~Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~purposes of this Agreement.

Appears in 3 contracts

Samples: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Sixth Restatement Effective Date (after having given effect to the Borrowing of the Incremental Tranche B-1 Term Loans thereon), by written notice to the Administrative Agent ~~from time to time~~as provided below, request one or more Lenders (including Persons who shall become Incremental ~~Loan Commitments~~Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, ~~in an~~ the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to ~~exceed the Incremental Amount~~ Section 7.01(m) and any Guarantees incurred pursuant to Section 7.01(e)(ii)(A)(x) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than 3.75 to 1.00; (ii) each Person which the Borrower shall request to make an Incremental Loan ~~Commitments~~ shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are ~~established~~Tranche A Term Loans, ~~from one~~ the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or ~~more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Persons to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)Loans, (iix) the date on which such Incremental Loans shall be made, (y) the Incremental Loan ~~Commitments are requested to become effective~~ Maturity Date and the Incremental Loan Principal Payment Dates (~~which shall not be less than 10 Business Days nor more than 60 days after the date of~~ if any) for such ~~notice),~~ Incremental Loans and (~~iii~~z) ~~whether~~ the Applicable Margin that will apply to such Incremental ~~Loan Commitments are commitments~~ Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make ~~additional Loans or commitments to make term loans~~ such Incremental Loans, together with ~~terms different from~~ such other information reasonably requested by the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders Administrative Agent in connection therewith. ~~The Borrower and each~~ Amounts prepaid in respect of Incremental ~~Term~~ Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall ~~execute~~ be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and ~~deliver~~ delivery to the Administrative Agent of an Incremental Loan ~~Assumption Agreement and such other documentation as~~ Amendment (in form reasonable satisfactory to the Administrative ~~Agent shall reasonably specify to evidence~~ Agent) by such Person or Persons, the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms~~ Borrower and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other LoansAgent; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to that the effectiveness of ~~each~~ such Incremental Loan ~~Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement~~ Amendment shall be ~~deemed amended~~ subject to the ~~extent (but only to the extent) necessary to reflect the existence and terms~~ satisfaction of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date each of ~~such effectiveness,~~ the conditions set forth in this Section ~~4.02~~ and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be ~~satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary~~ deemed to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, refer to the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be ~~ratably increased by the aggregate principal amount~~ deemed to be a separate series (each a “Series”) of ~~such~~ Incremental Loans ~~and shall be further increased~~ for all ~~Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~purposes of this Agreement.

Appears in 3 contracts

Samples: Incremental Loan Amendment (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc), Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to ~~time~~time after the Acquisition Date, request (x) Incremental ~~Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental~~ Term Loan Commitments ~~are established,~~ from one or more Incremental Term ~~Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible ~~Assignees~~Assignees and (y) ~~willing to provide~~ Incremental Revolving Credit Commitments from one or more Incremental Revolving Lenders; provided that the aggregate amount of Incremental Term Loans and/or Incremental Revolving Credit Commitments so requested by the Borrower shall not exceed (i) the Incremental Loans Amount plus (ii) an additional amount if, at the time of (and after giving pro forma effect at such time to) the incurrence of such Incremental Term Loan Commitments ~~in their own discretion~~and/or Incremental Revolving Credit Commitments and the application of proceeds therefrom, the Senior Secured Net Leverage Ratio is equal to or less than 3.75 to 1.00 (assuming all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were secured by the Borrower on a first lien basis, whether or not so secured, and all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were fully drawn on such date, whether or not so drawn). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount ~~or in each case such lesser amount approved by the Administrative Agent~~with respect to Incremental Term Loan Commitments), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), ) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Loan Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Loan Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such ~~amendments~~amendments (without the consent of any other Lender); provided that: (i) the Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the terms of the Incremental Revolving Credit Commitments and Incremental Revolving Loans shall be identical to the Revolving Credit Commitments and the Revolving Loans; (ii) the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except, in the case of Other Term Loans, as to maturity, interest rates, fees, amortization and call protection (which shall be subject to the following clauses (v) through (z)) and except as otherwise agreed by the Borrower and the Administrative Agent; provided that unless otherwise agreed by the Required Lenders, (v) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (w) the weighted average life to maturity of the Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans, (x) if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, (y) the Other Term Loans shall benefit from the same Guarantees as those of the Term Loans and (z) the ranking of the Other Term Loans shall, as determined by the Borrower (1) rank pari passu or junior with the Credit Facilities in right of payment and (2) be unsecured or secured by the Collateral on a pari passu or junior basis with the Credit Facilities (and, to the extent subordinated in right of payment or security to the Credit Facilities, shall be subject to entry into a customary intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent and Borrower); and (iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments, the Administrative Agent and the Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Administrative Agent shall promptly notify the Borrower and the Revolving Credit Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to any Revolving Credit Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender such participation interests in L/C Exposure outstanding on such Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrower shall prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to such increased Revolving Credit Commitments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.26 unless (i) on the date of such effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), (w) the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be satisfied, (x) Intermediate Holdings shall be in compliance, on a pro forma basis, with the financial covenant contained in Section 6.13 (assuming that the related Incremental Loans were drawn in full on such date and regardless of whether Intermediate Holdings is otherwise required to comply with such financial covenant at such time), (y) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the applicable Incremental Loan Commitments (assuming that the related Incremental Loans were drawn in full on such date) is permitted to be incurred pursuant to the terms of the Senior Notes and any other material Indebtedness of Intermediate Holdings, the Borrower and the Subsidiaries then outstanding and (z) the Administrative Agent shall have received a certificate to the foregoing dated such date and executed by a Financial Officer of Intermediate Holdings and (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Loan Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Acquisition Date under Section 4.03. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (e) The Incremental Loans and Incremental Loan Commitments established pursuant to this Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Assumption Agreement applicable thereto. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans or any such new Incremental Loan Commitments.

Appears in 3 contracts

Samples: Credit Agreement (ADS Waste Holdings, Inc.), Senior Secured Credit Agreement (Advanced Disposal Services Glacier Ridge Landfill, LLC), Senior Secured Credit Agreement (Trestle Transport, Inc.)

Incremental Loans. (a) ~~The~~ At any time from and after the First Amendment Effective Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the Revolving Credit Commitments or Extended Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~incurred after the Closing Date shall not (as of any date of Incurrence thereof) exceed the greater of (x) the greater of (i) $150,000,000 and (ii) 25.0% of Consolidated EBITDA for the most recently ended Test Period and (y) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, ~~from one~~ the maximum amount of additional Indebtedness that would cause the Consolidated Total Secured Leverage Ratio as of the four consecutive Fiscal Quarter period most recently ended for which financial statements have been delivered pursuant to Section 8.1(a) or ~~more~~ 8.1(b) prior to the proposed Increased Amount Date, calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness (and assuming any Incremental ~~Term Lenders~~ Revolving Credit Increase is fully drawn), to not exceed 3.50:1.00 (such amount, the “Incremental Facility Amount”) and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to Administrative Agent. The Borrower may ~~include~~ invite any ~~existing~~ Lender, any Affiliate of any Lender ~~and which must be Eligible Assignees) willing~~ and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such ~~effectiveness~~Increased Amount Date; provided that: (A) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, no Default or Event of Default shall exist on such Increased Amount Date immediately before or immediately after giving effect to (1) any Incremental Loan Commitment and (2) the ~~conditions~~ making of any Incremental Loans pursuant thereto; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Borrower is in compliance with the financial covenants set forth in Section ~~4.02~~ 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) subject to the Limited Condition Transaction Provisions in the case of a Limited Condition Transaction, each of the Specified Representations shall be ~~satisfied.~~true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, and correct in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (eD) ~~Each~~ each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the ~~parties hereto hereby agrees that the Administrative Agent may, in consultation~~ Borrower and shall be secured and guaranteed with the ~~Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (~~other ~~than Other Loans), when originally made, are included in each Borrowing~~ Extensions of ~~outstanding Loans~~ Credit on a ~~pro rata~~ pari passu basis~~. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ ; (1) in the ~~date~~ case of each Incremental ~~Loan, or by allocating a portion~~ Term Loan (the terms of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence~~ which shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the ~~applicable Incremental Loan Assumption~~ relevant Lender Joinder Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.):

Appears in 2 contracts

Samples: Credit Agreement (SYNAPTICS Inc), First Amendment and Lender Joinder Agreement (SYNAPTICS Inc)

Incremental Loans. In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a), (b) ~~The Borrower may~~and (c) above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Borrower may request that any one or more of the Lenders or, at the option of the Borrower, other financial institutions or funds selected by the Borrower offer to enter into commitments to make additional term Incremental ~~Loan Commitments~~Loans to the Borrower, in Dollars, under this paragraph (d). In the event that one or more of the Lenders or such other financial institutions or funds offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or funds and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Loans under this Agreement in an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount at the time such~~ amount of their respective Incremental Loan Commitments ~~are established~~(and such financial institutions shall become “Incremental Lenders” hereunder). The Incremental Loans to be made pursuant to any such agreement between the Borrower and any such Lenders or financial institutions or funds in response to any such request by the Borrower shall be deemed to be a separate “Series” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, ~~from~~ (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be (A) $20,000,000 or a larger multiple of $1,000,000 or (B) any other amount consented to by the Administrative Agent and (ii) the aggregate principal amount of all Incremental Loan Commitments established after the date hereof plus the aggregate principal amount of all Revolving Credit Commitment Increases obtained after the date hereof shall not exceed $250,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, participation and other fees, commitment reduction schedule (if any), amortization and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Lenders of such Series, the Borrower and the Administrative Agent (which agreement by the Administrative Agent shall not be unreasonably withheld in the case of interest rates and participation and other fees), provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the collateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Loan, (ii) the maturity for Incremental Loans shall not be earlier than the Term Loan Maturity Date for Tranche B Term Loans and may be later than such Term Loan Maturity Date to the extent so agreed by the Borrower and such Incremental Lenders and (iii) the weighted average-life-to-maturity for such Series of Incremental Loans shall not be shorter than the weighted average-life-to-maturity for the Tranche B Term Loans and may be longer than the weighted average-life-to-maturity for the Tranche B Term Loans to the extent so agreed by the Borrower and such Incremental Lenders. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental ~~Term Lenders~~ Loans pursuant to the foregoing provisions of this paragraph (~~which may include any existing~~ d), each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the terms and ~~which must be Eligible Assignees) willing~~ conditions of this Agreement, to ~~provide~~ make such Incremental ~~Loan Commitments~~ Loans to the Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in ~~their own discretion. Such notice shall set forth (i)~~ the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental ~~Loans shall be ratably increased by the aggregate principal amount~~ Lender in respect of such Series as in effect from time to time. Amounts prepaid or repaid in respect of Incremental Loans ~~and shall~~ may not be ~~further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~reborrowed.

Appears in 2 contracts

Samples: Credit Agreement (Geo Group Inc), Credit Agreement (Geo Group Inc)

Incremental Loans. (a) ~~The Borrower~~ Metals USA may, by written notice to the Administrative Agent from time to time, request Incremental ~~Loan Commitments,~~ Commitments in an amount not to exceed the Incremental Amount (and, with respect to any Incremental Tranche A-1 Commitments, also not to exceed the Incremental Tranche A-1 Amount) from one or more Persons (each, an “Incremental Lender”), which may include any existing Lender; provided that (i) each Incremental Lender, if not already a Lender hereunder, shall be subject to the approval of the Administrative Agent, the Letter of Credit Issuers and the Swingline Lender (which approvals shall not be unreasonably withheld or delayed), (ii) that the upfront fees for any such Incremental Commitments may be less than or exceed the upfront fees for the Commitments outstanding prior to effectiveness of such Incremental Commitments and in no event shall the upfront fees for such Commitments be adjusted to equal the fees for such Incremental Commitments and (iii) with respect to any Incremental Tranche A-1 Commitments, the Applicable Margins for such Tranche A-1 Commitments may be less than or exceed the Applicable Margins for the Tranche A Commitments or other Tranche A-1 Commitments, as agreed upon among the Administrative Agent, the Borrowers and the Tranche A-1 Lenders at the time such Incremental ~~Loan~~ Tranche A-1 Commitments ~~are established~~become effective, ~~from one~~ and in no event shall the Applicable Margins for the Tranche A Commitments or ~~more Incremental Term Lenders (which may include any existing Lender and which must~~ other Tranche A-1 Commitments be ~~Eligible Assignees) willing~~ adjusted to ~~provide~~ equal the Applicable Margins for such Incremental ~~Loan Commitments in their own discretion~~Tranche A-1 Commitments. Such notice shall set forth (i) whether Incremental Tranche A Commitments or Incremental Tranche A-1 Commitments are being requested and the amount ~~of the Incremental Loan Commitments~~ thereof being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Amount or (not to exceed the remaining Incremental Tranche A-1 Amount in ~~each~~ the case ~~such lesser amount approved by the Administrative Agent~~of Incremental Tranche A-1 Commitments)), (ii) the date on which such Incremental ~~Loan~~ Commitments are requested to become effective ~~(which shall not be less than 10 Business Days nor more than 60 days after the date of such notice),~~ and (iii) ~~whether~~ if such Incremental ~~Loan~~ Commitments are ~~commitments to make additional Loans or commitments to make term loans with terms different from~~ Tranche A-1 Commitments, the ~~Loans (“Other Loans”)~~Applicable Margin applicable thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower Borrowers and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental ~~Loan~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental ~~Loan~~ Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan~~ Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental ~~Loan~~ Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence ~~and terms~~ of the Incremental ~~Loan Commitment and the Incremental Loans~~ Commitments evidenced thereby~~, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments~~. (dc) Notwithstanding the foregoing, no Incremental ~~Loan~~ Commitment shall become effective under this Section ~~2.04~~ 2.5 unless (i) on the date of such effectiveness, the conditions set forth in Section ~~4.02~~ 10.2 shall be ~~satisfied~~satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and signed by a Responsible Officer of each Borrower, (ii) all fees and expenses owing to the Administrative Agent or any Lender in respect of such Incremental Commitment shall have been paid and (iii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 10.1. (ed) Upon the effectiveness of an Incremental Assumption Agreement, the Commitments shall be increased by the aggregate amount of the Incremental Commitments evidenced thereby, which shall, thereafter, constitute Commitments for all purposes of this Agreement and the other Loan Documents. Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with ~~the Borrower~~Metals USA, take any and all action as may be reasonably necessary to ensure that ~~all~~ the Revolving Loans of each Class outstanding on the effective date of any Incremental ~~Loans (other than Other Loans)~~Assumption Agreement are held by the Lenders in that Class in accordance with their respective Tranche A Pro Rata Shares or Tranche A-1 Pro Rata Shares, ~~when originally made~~as the case may be, ~~are included in each Borrowing~~ after giving effect to the effectiveness of ~~outstanding Loans on a pro rata basis~~such Incremental Assumption Agreement. This may be accomplished by requiring each outstanding ~~Eurocurrency Borrowing~~ LIBOR Rate Revolving Loan to be converted into ~~an ABR Borrowing on~~ or prepaid with the ~~date~~ proceeds of ~~each Incremental Loan~~Base Rate Revolving Loans, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation5.4 but otherwise without premium or penalty.

Appears in 2 contracts

Samples: Loan and Security Agreement (FLAG INTERMEDIATE HOLDINGS Corp), Loan and Security Agreement (Metals Usa Holdings Corp.)

Incremental Loans. (ai) ~~The~~ Borrower ~~may~~may make up to five requests for an incremental term loan (the "Incremental Term Loan") or incremental revolving loan (the "Incremental Revolving Loan"), ~~by written notice to the Administrative Agent from time to time~~each such request being for at least $5,000,000, ~~request Incremental Loan Commitments,~~ and in an aggregate amount not to exceed $40,000,000 for all such requests pursuant to delivery of a written request from the Borrower to the Agent. Each such notice shall specify the date (an "Increase Effective Date") on which the Borrower proposes that the increased or new Commitments shall be effective, which date shall be a date not less than ten (10) Business Days after such request is delivered to the Agent. The increased or new Commitments shall become effective on the applicable Increase Effective Date as long as each of the following conditions have been met: (A) no Default or Event of Default has occurred or is continuing or would result after giving effect to such Incremental ~~Amount~~ Term Loan or Incremental Revolving Loan; (B) (1) the maturity date of any Incremental Term Loan, the weighted average life of any Incremental Term Loan, the effective yield to the Lenders under such Incremental Term Loan (including interest, fees received ratably by such Lenders and original issue discount) shall be the same as the Initial Term Loan B, as applicable, at the time such Incremental Term Loan is funded and (2) any Incremental Revolving Loan shall become part of the Revolving Loans with the same maturity, interest, fees and terms as the Revolving Loans; (C) the Borrower has provided evidence reasonably satisfactory to the Agent that the Borrower would have been in compliance with the financial covenants set forth in Section 6 assuming that the Incremental Term Loan or Incremental Revolving Loan, as applicable, had been incurred on the last day of the then most recently completed Fiscal Quarter; and (D) the Agent shall have received amendments to this Agreement and the Loan Documents, joinder agreements for any new Lenders, and all other promissory notes, agreements, documents and instruments reasonably satisfactory to the Agent in its reasonable discretion evidencing and setting forth the conditions of the Incremental Term Loan or Incremental Revolving Loan, as applicable. (ii) Each Lender which (a) holds a Term Loan B on the date the Borrower delivers a written request to the Agent for a Incremental Term Loan or a Revolving Loan on the date the Borrower delivers a written request to the Agent for an Incremental Revolving Loan and (b) notifies the Agent in writing within five (5) days of receipt of written notice from the Agent that Borrower has requested an Incremental Term Loan or Incremental Revolving Loan, as applicable, shall have the right to fund its pro rata share of the Incremental Term Loan or Incremental Revolving Loan, as applicable, based upon its share of the Term Loan B Commitment or the Revolving Loan Commitment, as applicable, as of the date the Agent originally received the applicable notice from the Borrower. Notwithstanding anything contained herein or otherwise to the contrary, no Lender shall have any obligation to fund all or any portion of, or participate in, the Incremental Term Loan or the Incremental Revolving Loan. Amounts of the Incremental Term Loan which are repaid may not be reborrowed. (iii) On any Increase Effective Date on which Incremental Revolving Loans are effected, subject to the satisfaction of the foregoing terms and conditions, (A) each of the Lenders with Revolving Loan Commitments ~~are established~~shall assign to each Lender with an Incremental Revolving Loan (each, an "Incremental Revolving Loan Lender") and each of the Incremental Revolving Loan Lenders shall purchase from ~~one or more~~ each of the Lenders with Revolving Loan Commitments, at the principal amount thereof (together with accrued interest), such interests in the Revolving Loans on such Increase Effective Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Loans will be held by existing Lenders with Revolving Loan and Incremental Revolving Loan Lenders ratably in accordance with their Revolving Loan Commitments after giving effect to the addition of such Incremental Revolving Loans to the Revolving Loan Commitments, (B) each Incremental Revolving Loan shall be deemed for all purposes a Revolving Loan Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Loan and (C) each Incremental Revolving Loan Lender shall become a Lender with respect to the Revolving Loan Commitment and all matters relating thereto. (iv) On any Increase Effective Date on which Incremental Term ~~Lenders~~ Loans are effected, subject to the satisfaction of the foregoing terms and conditions, (~~which may include any existing~~ A) each Lender ~~and which must be Eligible Assignees~~with an Incremental Term Loan (each, an "Incremental Term Loan Lender") ~~willing~~ shall make a Loan to ~~provide such Incremental Loan Commitments~~ the Borrower in ~~their own discretion. Such notice shall set forth (i)~~ an amount equal to the amount of the Incremental Term Loan ~~Commitments being requested~~ such Lender has committed to fund and (~~which~~ B) each Incremental Term Loan Lender shall ~~be in minimum increments of $1,000,000 and~~ become a ~~minimum amount of $5,000,000 or equal~~ Lender hereunder with respect to the ~~remaining~~ Incremental ~~Amount or in each case such lesser amount approved by~~ Term Loan. Amounts of the ~~Administrative Agent), (ii) the date on which such~~ Incremental Term Loan ~~Commitments are requested to become effective (which shall~~ repaid may not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)reborrowed. (bv) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the ~~parties hereto hereby~~ Borrower, Lenders and Agent acknowledges and agrees ~~that, upon the effectiveness of any~~ that an Incremental Term Loan ~~Assumption Agreement, this Agreement shall be deemed amended to the extent~~ or Incremental Revolving Loan (~~but only to the extent~~and related amendments and documents described in clause (iv) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (dabove) ~~Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness,~~ meeting the conditions set forth in this Section ~~4.02~~ 1.1(g) shall ~~be satisfied. (e) Each~~ not require the consent of ~~the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take~~ any ~~and all action as may be reasonably necessary to ensure that all Incremental Loans (~~Lender other than ~~Other Loans)~~those Lenders, ~~when originally made~~if any, ~~are included~~ which have agreed to participate in ~~each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ the ~~date of each~~ Incremental Term Loan or the Incremental Revolving Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationapplicable."

Appears in 2 contracts

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

Incremental Loans. ~~(a)~~ The Borrower may, by written notice to the Administrative Agent from time to time, request that the Revolving Commitments be increased (the “Incremental ~~Loan~~ Revolving Commitments”) or that that one or more additional tranches of Term Loans (the “Incremental Term Loans” and, together with the Incremental Revolving Commitments, the “Incremental Loans”) be made available to the Borrower in an aggregate amount not to ~~exceed~~ exceed, for all such Incremental Loans, the Incremental ~~Amount at the time~~ Loan Amount; provided that each such Incremental Loan ~~Commitments are established~~may be provided by either a Lender or a non-Lender that is reasonably acceptable to the Administrative Agent (each such party providing an Incremental Revolving Commitment, ~~from one or more~~ an “Incremental Revolving Lender” and each such party providing an Incremental Term ~~Lenders (which may include~~ Commitment, an “Incremental Term Lender”). For the avoidance of doubt, no Lender shall have any ~~existing Lender and which must be Eligible Assignees) willing~~ obligation to ~~provide~~ make an Incremental Loan. Any such Incremental Loan ~~Commitments in their own discretion. Such notice~~ shall ~~set forth~~ be effective only upon the satisfaction or waiver of the following conditions precedent: (i) ~~the amount of the Incremental Loan Commitments being requested~~ (~~which~~ A) no Default shall have occurred and be ~~in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii)~~ continuing on the date on which such Incremental Loan ~~Commitments are requested~~ is to become effective or will result therefrom and (~~which~~ B) the representations and warranties in Article VI shall ~~not~~ be ~~less than 10 Business Days nor more than 60 days after~~ true and correct in all material respects on and as of the date of the incurrence of such ~~notice~~Incremental Loan; (ii) the Borrower shall be in compliance with, on a Pro Forma Basis after giving effect to the incurrence of any such Incremental Loan (and assuming all such Incremental Loans are fully draw) and any acquisition, Disposition, prepayment of Indebtedness or Restricted Payment consummated in connection therewith, a Consolidated Senior Leverage Ratio of not greater than the then applicable ratio set forth in Section 8.12(a)~~, and~~ ; (iii) ~~whether~~ each such Incremental Loan ~~Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).~~shall be in a minimum amount of $5,000,000 and shall be in increments of $1,000,000 for amounts in excess thereof; (biv) ~~The~~ (x) in the case of Incremental Revolving Loans, the Borrower ~~may seek~~ and each Incremental Revolving Lender shall execute and deliver to the Administrative Agent an assumption and assignment agreement (an “Incremental Revolving Loan ~~Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~Assumption Agreement”) and ~~additional banks, financial institutions~~ such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Commitment of such Incremental Revolving Lender and ~~other institutional lenders who will become~~ (y) in the case of Incremental Term ~~Lenders in connection therewith. The~~ Loans, the Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an assumption and assignment agreement (an “Incremental Term Loan Assumption Agreement” and together with the Incremental Revolving Loan Assumption Agreement, an “Incremental Loan Assumption ~~Agreement~~ Agreement”) and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental ~~Loan~~ Term Commitment of ~~each~~ such Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans.; and (cv) ~~if the initial yield on such Other Loans (as determined by~~ the Administrative Agent ~~to be equal~~ shall have received all documents (including resolutions of the board of directors of the Borrower and the Guarantors and opinions of outside legal counsel to the ~~sum of (x~~Borrower and the Guarantors) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, it may reasonably request relating to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect corporate or other necessary authority for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption ~~Agreement. In addition~~Agreement and any other matters relevant thereto, all in form and substance reasonably satisfactory to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationAdministrative Agent.

Appears in 2 contracts

Samples: Credit Agreement (Keyw Holding Corp), Credit Agreement (Keyw Holding Corp)

Appears in 2 contracts

Samples: Credit Agreement (Orbital Sciences Corp /De/), Credit Agreement (Orbital Sciences Corp /De/)

Incremental Loans. (a) ~~The Borrower may~~At any time, the applicable Borrowers may by written notice from the Borrowing Agent to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to increase the maximum principal amount of revolving credit loans permitted hereunder (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed Fifteen Million and 00/100 Dollars ($15,000,000.00) and (2) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of Five Million and 00/100 Dollars ($5,000,000) or, ~~from one or more~~ if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the applicable Borrowers propose that any Incremental ~~Term~~ Loan Commitment shall be effective, which shall be a date not less than twenty (20) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowers shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (~~which may include~~ any such Person, an “Incremental Lender”); provided that the Administrative Agent, the Swing Loan Lender and each Issuing Lender shall consent to each Incremental Lender (including any existing Lender) providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender ~~and which must be Eligible Assignees) willing~~ offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.Increased Amount Date; provided that:

Appears in 2 contracts

Samples: Credit Agreement (Mastech Digital, Inc.), Credit Agreement (Mastech Digital, Inc.)

Incremental Loans. ~~(a) The~~ At any time, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~establish one or more increases in the Revolving Credit Commitments (any such increase, ~~request~~ an “Incremental Loan ~~Commitments~~Commitment”) to make revolving credit loans (any such loan, in an “Incremental Loan”); provided that (i) the total aggregate principal amount ~~not to exceed the Incremental Amount at the time~~ for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed $150,000,000 and (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $5,000,000 (or such lesser amount that shall be reasonably satisfactory to the Administrative Agent) and shall be in integral multiples of $1,000,000 (or such lesser amount that shall be reasonably satisfactory to the Administrative Agent) in excess thereof or, ~~from one~~ if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than five (5) Business Days (or ~~more~~ such lesser number of days as is reasonably acceptable to the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may, but is under no obligation to do so, invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental ~~Term Lenders~~ Loan Commitment (~~which may include~~ any ~~existing~~ such Person, an “Incremental Lender”); provided that the Swingline Loan Lender and ~~which must be Eligible Assignees) willing~~ each Issuing Lender with an Issuing Lender L/C Sublimit equal to or in excess of $35,000,000 shall consent in writing to each Incremental Lender providing any portion of an Incremental Loan Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such ~~effectiveness~~Increased Amount Date; provided that: (a) no Event of Default shall exist on such Increased Amount Date before or after giving effect to any Incremental Loan Commitment; provided, for the avoidance of doubt, that any making of any Loan or any issuance, extension or increase with respect to any Letter of Credit in reliance on any Incremental Loan Commitment shall be subject to the satisfaction of the conditions set forth in Section ~~4.02~~ 6.2 [Each Loan or Letter of Credit]. (b) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement; (c) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be ~~satisfied~~secured and guaranteed with the other Obligations on a pari passu basis; (i) such Incremental Loans shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (ii) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and (iii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction. (d) The Incremental Lenders shall be included in any determination of the Required Lenders. (e) ~~Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take~~ On any ~~and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans~~ Increased Amount Date on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If which any Incremental Loan is Commitment becomes effective, subject to ~~be allocated to~~ the foregoing terms and conditions, each Incremental Lender with an ~~existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable~~ Incremental Loan ~~Assumption Agreement. In addition,~~ Commitment shall become a Lender hereunder with respect to ~~the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of~~ such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationLoan Commitment.

Appears in 2 contracts

Samples: Credit Agreement (Peabody Energy Corp), Credit Agreement (Peabody Energy Corp)

Incremental Loans. (aA) ~~The~~ If any Preferred Units of any Borrower ~~may~~remain outstanding on March 31, 2022 (the “Exchange Date”), then on the Exchange Date (or such later date as provided pursuant to the Preferred Units Documents and the Governance Agreement and specified in the applicable Exchanging Lender Joinder Agreement), to the extent that a holder of Preferred Units of such Borrower (such holder, a “Preferred Unit Holder”) exercises its exchange option pursuant to the terms of the Preferred Units Documents for such Borrower and the Governance Agreement and in accordance with clause (B) of this Section 2.01(a)(ii), the Incremental Credit Extension in respect of such Preferred Unit Holder’s Preferred Units of such Borrower shall occur on the Exchange Effective Date such that, immediately after giving effect thereto, Incremental Loans of such Borrower shall be held by ~~written notice~~ such Preferred Unit Holder in accordance with the terms of the Preferred Units Documents of such Borrower, the Governance Agreement and clause (B) of this Section 2.01(a)(ii), and such Preferred Unit Holder shall become a Lender with an Incremental Loan to such Borrower under this Agreement. Except as expressly set forth herein, any such Incremental Loans of any Class will have terms and conditions identical to those of the Initial Loans of such Class in all respects and will be “Loans” of such Class for all purposes under this Agreement. Amounts repaid or prepaid in respect of Incremental Loans may not be reborrowed. Subject to Section 2.10, all amounts owed hereunder with respect to the Incremental Loans shall be paid in full no later than the Maturity Date. (B) At least three Business Days prior to any Preferred Unit Holder effectuating an exchange of Preferred Units for Incremental Loans of any Class pursuant to clause (A) of this Section 2.01(a)(ii) (such exchange, a “Preferred Unit Exchange”), such Preferred Unit Holder shall (i) execute and deliver an Exchanging Lender Joinder Agreement to the Administrative Agent from time to time, request Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) to the ~~date on which~~ extent such ~~Incremental Loan Commitments are requested to become effective (which shall~~ Preferred Unit Holder is not ~~be less than 10 Business Days nor more than 60 days after the date of such notice)~~already a Lender, and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an ~~Incremental Loan Assumption~~ Administrative Questionnaire and the applicable tax form under Section 2.16. Each Exchanging Lender Joinder Agreement ~~and such other documentation as the Administrative Agent~~ shall ~~reasonably~~ specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the ~~final maturity~~ effective date of ~~any Other Loans~~ the Preferred Unit Exchange (which shall be ~~no earlier than~~ a Business Day) (the ~~Maturity~~ “Exchange Effective Date”), (ii) whether the Incremental Loan to be received by such Preferred Unit Holder is an Advisors Incremental Loan, an Advisors II Incremental Loan, or an OZM Incremental Loan and (iii) the principal amount of the Incremental Loan to be received by such Preferred Unit Holder (which such Preferred Unit Holder agrees shall be consistent with the exchange provisions and calculations set forth in the Preferred Units Documents and the Governance Agreement). The parties hereto (1) acknowledge and agree that (i) the Administrative Agent may conclusively rely on an Exchanging Lender Joinder Agreement as evidence that the Preferred Unit Holder party thereto exercised the exchange option pursuant to the terms of the Preferred Units Documents for the applicable Borrower and the Governance Agreement and on the terms set forth in such Exchanging Lender Joint Agreement, (ii) the ~~average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the~~ Administrative Agent is not a party to ~~be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount~~ any Preferred Units Documents or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Governance Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent ~~and~~ does not have any duty, responsibility or obligation (A) under any Preferred Units Documents or the ~~Borrower may revise this~~ Governance Agreement or (B) to ~~evidence such amendments.~~ inquire or ascertain whether an Preferred Unit Exchange is permitted thereunder, (diii) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent ~~may~~does not have any duties, responsibilities or obligations with respect to any Preferred Units or the cancellation thereof in ~~consultation~~ connection with a Preferred Unit Exchange and (iv) the ~~Borrower~~Administrative Agent shall have not have any liability to any Lender or other Person arising from, ~~take~~ out of, or in connection with any Preferred Unit Exchange consummated or purported to be consummated and (2) waives any and all claims or causes of action ~~as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans)~~against the Administrative Agent and its Related Parties arising from, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loanout of, or ~~by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required~~ in connection with any Preferred Unit Exchange or any actions taken by the ~~preceding sentence shall be subject to~~ Administrative Agent in accordance with this Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation2.01(a)(ii).

Appears in 2 contracts

Samples: Governance Agreement (Och-Ziff Capital Management Group LLC), Senior Subordinated Term Loan and Guaranty Agreement (Och-Ziff Capital Management Group LLC)

Appears in 2 contracts

Samples: Credit Agreement (Altice USA, Inc.), Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) ~~The Borrower may~~At any time commencing on the Effective Date until the date that is one year prior to the Maturity Date, by provided no Default or Event of Default has occurred and is continuing and subject to the conditions set forth in clause (d) below, upon written notice to the Administrative Agent (each, an “Incremental Request Notice”), the Borrower may, from time to time, request one or more increases (but no more than two increases in the aggregate) to the Commitments to fund additional Loans (each, an “Incremental ~~Loan Commitments,~~ Loan”) in an aggregate amount not to exceed $70,000,000; provided that the ~~Incremental Amount at the time~~ proceeds of such Incremental ~~Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must~~ Loans shall be ~~Eligible Assignees) willing~~ used to ~~provide such~~ refinance the First Lien Obligations. Any Incremental Loan ~~Commitments~~ shall be in ~~their own discretion. Such notice shall set forth (i)~~ the amount of ~~the Incremental Loan Commitments being requested~~ at least $10,000,000 (~~which shall be in minimum increments~~ or such lower amount that represents all remaining availability pursuant to this Section 2.22(a)) and integral multiples of $1,000,000 ~~and a minimum~~ in excess thereof (or such lower amount ~~of $5,000,000 or equal~~ that represents all remaining availability pursuant to ~~the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~this Section 2.22(a), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The ~~Borrower may seek~~ Incremental Request Notice shall specify the time period (such period, the “Election Period”) within which the Lenders of record at such time are requested to respond (which Election Period shall in no event be less than ten (10) Business Days from the date of delivery of such notice) and the terms of the requested Incremental Loans (which terms shall include, without limitation, (A) the proposed loan amount, (B) the interest rate, (C) the term of the loan, including any extension options, (D) a description of any guaranties or other credit enhancements to be provided, and (E) any fees), and the Administrative Agent shall promptly notify such Lenders of the Borrower’s request for such Incremental Loan ~~Commitments from existing~~ and the Election Period during which the Lenders ~~(each~~ are requested to respond to the Incremental Request Notice; provided that if such Incremental Request Notice is conditioned upon the occurrence of ~~which~~ a specified event, such Incremental Request Notice may be revoked if such event does not occur prior to the requested funding date. No Lender shall be ~~entitled~~ obligated to ~~agree~~ increase its Commitment or ~~decline~~ to participate in any Incremental Loan and each Lender’s determination to increase its Commitment or to participate in any Incremental Loan shall be in such Lender’s sole and absolute discretion. To the extent any Lender has not responded by the end of such Election Period, such Lender shall be deemed to have declined to increase its Commitment. If a Lender elects to increase its Commitment, such Lender may select any of its Controlled Investment Affiliates to provide all or a portion of such Commitments or Incremental Loans. To the extent any Lender does not agree to provide an Incremental Loan on terms set forth in the Borrower’s Incremental Request Notice, the Borrower may invite (x) any other existing Lender or (y) any prospective lender that satisfies the criteria set forth in Section 9.04(b) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver is reasonably satisfactory to the Administrative Agent an to provide such Incremental ~~Loan Assumption Agreement~~ Loans on the same terms offered to such Lender and ~~such other documentation as~~ to become a Lender pursuant to a joinder agreement in form and substance reasonably satisfactory to the Administrative Agent ~~shall reasonably specify to evidence~~ in connection with the proposed Incremental Loan ~~Commitment~~ (provided that the joinder of ~~each~~ any such “Lender” for the purpose of providing all or any portion of any such Incremental ~~Term~~ Loan shall not require the consent of any other Lender (including any other “Lender~~. The terms and provisions~~ ” that is joining this Agreement to provide all or part of ~~the~~ such Incremental Loan)); provided further that, prior to incurring any Incremental Loans ~~(excluding amortization~~from any such prospective lender, ~~maturity, pricing, fees and rate floors)~~ the Lenders shall be ~~identical~~ provided with an opportunity to ~~those~~ fund all or a portion of such Incremental Loans on the ~~Loans except~~ same terms offered to the prospective lender. For the avoidance of doubt, no Incremental Loan may be incurred without first delivering an Incremental Request Notice to the Lenders of record at such time to provide such Incremental Loan as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loansprovided above. (c) if If the ~~initial yield on such Other Loans (as determined by~~ Commitments are increased in accordance with this Section 2.22, the Administrative Agent ~~to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans~~ and ~~(y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from~~ the Borrower ~~or any Subsidiary for doing so~~ shall determine the effective date (the ~~amount~~ “Increase Effective Date”) and the final allocation of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingIncremental Loan. The Administrative Agent shall promptly notify ~~each Lender as to~~ the ~~effectiveness~~ Borrower and the Lenders of ~~each~~ the final allocation of such Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the ~~Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments~~Increase Effective Date. (d) ~~Notwithstanding~~ Each of the ~~foregoing~~following shall be the only conditions precedent to the making of an Incremental Loan: (i) The Borrower, no the Administrative Agent and each Lender providing an Incremental Loan ~~Commitment~~ shall ~~become effective under~~ enter into an amendment to effectuate the provisions of this Section ~~2.04 unless on~~ 2.22, including without limitation, to ensure and demonstrate that the ~~date~~ Liens and security interests granted by the Loan Documents are perfected under the UCC or other applicable law to secure the Obligations in respect of the Incremental Loan (the “Incremental Amendment”); (ii) The Borrower shall deliver to the Administrative Agent (i) a certificate of each Loan Party, dated the Effective Date and executed by its Director, Secretary or Assistant Secretary, which shall (A) certify the resolutions of its board of directors, managers, members or other body approving or consenting to the Incremental Loans, (B) identify by name and title and bear the signatures of the officers of such ~~effectiveness~~Loan Party authorized to sign the Loan Documents to which it is a party and, in the case of the Borrower, its Financial Officers, and (C) attach the charter, articles or certificate of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party and a true and correct copy of its bylaws or operating, management or partnership agreement, or other organizational or governing documents, or contain a certification that such organizational or governing documents have not changed since they were previously delivered to the Administrative Agent and (ii) a good standing certificate for each Loan Party (except for the Australian Loan Parties) from its jurisdiction of organization or incorporation of each Loan Party certified by the relevant authority of the jurisdiction of organization of such Loan Party. (iii) Each of the conditions precedent set forth in Section 4.02 shall be satisfied. (eiv) ~~Each of the parties hereto hereby agrees that~~ The Borrower shall have delivered to the Administrative Agent ~~may~~a certificate certifying as to compliance with the requirements of clause (iii) above. (v) The Borrower shall deliver to any Lender providing an increase in the Commitments hereunder (or any new Lender providing such Incremental Loan hereunder) any Notes requested by such Lender in connection with the making of such increased or new Commitment. (vi) The Administrative Agent and the Lenders shall have received a legal opinion, in ~~consultation~~ form and substance reasonably satisfactory to the Administrative Agent and the Lenders, with respect to the transactions contemplated by this Section 2.22 as the Administrative Agent and the Lenders may reasonably require. (vii) The Borrower shall have paid to the Administrative Agent any fees required to be paid pursuant to the terms of this Agreement or the Agent Fee Letter, and shall have paid to the Lenders any fees required to be paid hereunder and otherwise in connection with the ~~Borrower, take~~ increased Commitment. (e) This Section shall supersede any ~~and all action as may be reasonably necessary~~ provisions in Section 2.18 or 9.02 to ~~ensure that all~~ the contrary. (f) Any Incremental Loans shall, for purposes of any repayment or prepayment of principal or interest, be treated substantially the same as the then existing Loans, and made pursuant to the same documentation as the Loans. (~~other than Other Loans), when originally made, are included in each Borrowing of outstanding~~ g) The Incremental Loans ~~on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ shall have the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as terms set forth in the applicable Incremental ~~Loan Assumption Agreement. In addition,~~ Request Notice; provided that (i) to the extent the All-in-Yield applicable to the Incremental Loan is higher than the All-in-Yield applicable to the then existing Loans (without giving effect to any ~~Incremental Loans are not Other Loans~~Default Rate) by more than 0.50%, ~~the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans~~ this Agreement shall be ~~ratably increased by~~ amended to increase the ~~aggregate principal amount of such Incremental~~ interest rate applicable to the then existing Loans ~~and shall be further increased for all Lenders on a pro rata basis~~ to the extent necessary so that the All-in-Yield on such Incremental Loan is no more than 0.50% greater than the All-in-Yield on the then existing Loans and (ii) the terms of any Incremental Request Notice which is provided pursuant to ~~avoid any reduction~~ Section 6.01(t) shall satisfy the applicable requirements set forth in the ~~amortization payments~~ definition of “Refinancing Indebtedness”. (h) Upon the increase in Commitments under this Section 2.22, all references in this Agreement and in any other Loan Documents (x) to ~~which~~ the ~~Lenders were~~ Commitment of any Lender shall be deemed to include any increase in such Lenders’ Commitment pursuant to this Section 2.22 and (y) to the aggregate amount of Commitments made pursuant to this Section 2.22. The Loans, the Incremental Loans and the aggregate amount of Commitments that are increased under this Section 2.22 shall be entitled ~~before such recalculation~~to all of the benefits afforded by this Agreement and the other Loan Documents and shall benefit equally and ratably from any guarantees and Liens provided under the Loan Documents in favor of the Secured Parties.

Appears in 2 contracts

Samples: Subordinated Credit Agreement (F45 Training Holdings Inc.), Subordinated Credit Agreement (F45 Training Holdings Inc.)

Appears in 1 contract

Samples: Credit Agreement (Orbital Atk, Inc.)

Incremental Loans. Subject to Section 2.20, in addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a) ~~The Borrower may~~and (b) above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Borrowers may request that the Lenders (or other Eligible Financial Institutions) offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental ~~Loan Commitments~~Loan") under this paragraph (c). In the event that one or more of the Lenders (or such other Eligible Financial Institutions) offer, in their sole discretion, to enter into such commitments, and such Lenders (or Eligible Financial Institutions) and the Borrowers agree as to the amount of such commitments that shall be allocated to the respective Lenders (or Eligible Financial Institutions) making such offers and the fees (if any) to be payable by the Borrowers in connection therewith, such Lenders (or Eligible Financial Institutions) shall become obligated to make Incremental Loans under this Agreement in an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount at the time such~~ amount of their respective Incremental Loan Commitments ~~are established, from~~ (and such Eligible Financial Institutions shall become "Lenders" and "Incremental Lenders" hereunder). The Incremental Loans to be made pursuant to any such agreement between the Borrowers and one or more Incremental ~~Term~~ Lenders in response to any such request by the Borrowers shall be deemed to be a separate "Series" of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (~~which may include any existing Lender and which must be Eligible Assignees~~i) ~~willing to provide such~~ the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $25,000,000 and (ii) no borrowing of Incremental Loans shall be permitted if (after giving effect thereto) (x) the ratio of (A) Total Consolidated Senior Secured Indebtedness to (B) EBITDA for the period of four consecutive Fiscal Quarters ending on or more recently ended prior to the date of such borrowing would exceed 2.75 to 1 or (y) such borrowing would result in ~~their own discretion~~a breach of Section 6.11(b) or (c) of this Agreement (calculated on a pro forma basis after giving effect to such borrowing and as if the Determination Date for making such calculation were the date of such borrowing). ~~Such notice~~ On the occasion of each borrowing of Incremental Loans (and as a condition precedent thereto), the Lead Borrower shall ~~set forth~~ deliver a certificate signed by a Financial Officer of the Lead Borrower demonstrating in reasonable detail compliance with clause (iii) of the preceding sentence. Following the acceptance by the Borrowers of the offers made by any one or more Lenders or Eligible Financial Institutions to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (c), each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrowers during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental ~~Loans shall be ratably increased by the aggregate principal amount~~ Lender in respect of such Series as in effect from time to time. Amounts prepaid or repaid in respect of Incremental Loans ~~and shall~~ may not be ~~further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~reborrowed.

Appears in 1 contract

Samples: Credit Agreement (Isp Minerals Inc /Ny/)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be identical to those of the Loans except as otherwise set forth ~~herein~~herein or in the Incremental Loan Assumption Agreement. Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average life to maturity of the Other Loans shall be no shorter than the remaining average life to maturity of the Loans. , (ciii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1A) the average life to maturity of such Other Loans and (2B) four) exceeds the ~~applicable margin~~ Applicable Margin then in effect for ~~Eurocurrency~~ Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the ~~applicable margin~~ Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) the other terms and documentation in respect of such Other Loans~~; provided that~~, to the extent ~~any portion of~~ not consistent with the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans~~Term Facility, ~~such floor~~ shall ~~only~~ be ~~included in the calculation of the Yield Differential~~ reasonably satisfactory to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a pari passu basis with, the Loans. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.22 unless (i) on the date of such effectiveness, (x) the ~~conditions~~ representations and warranties set forth in ~~Section 4.02~~ Article III and in each other Loan Document shall be ~~satisfied~~true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Borrower’s Total Secured Leverage Ratio shall not exceed 2.50:1.00 on a pro forma basis after giving effect to such Incremental Loan Commitment, the incurrence of the Incremental Loans thereunder the use of proceeds thereof and the Administrative Agent shall have received a certificate to that effect showing such calculations in reasonable detail dated such date and executed by a Responsible Officer of the Borrower, (iii) all fees and expenses owing to the Administrative Agent and the Lenders in respect of such increase shall have been paid, (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 of the Original Credit Agreement and (v) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, at the direction and in the sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Encumbrances) and (z) the Borrower shall have delivered, at the request of the Administrative Agent, to the Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such Mortgages as security for the Obligations. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Amendment Agreement (Supervalu Inc)

Incremental Loans. (a) ~~The~~ Borrower may, by written notice to ~~the Administrative~~ Agent from time to time, request ~~Incremental Loan Commitments~~an increase in the principal amount of the Loans, ~~in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ or request one or more additional tranches of Loans (the “Incremental ~~Term Lenders~~ Loans”); provided that the aggregate principal amount of Incremental Loans incurred under this Section 2.15 shall not exceed an amount equal to the sum of (~~which may include any existing Lender~~ a) $100 million plus (b) an additional amount so long as, after giving effect to the incurrence of such additional amount, (i) Borrower could incur $1.00 of additional Indebtedness under Section 7.1(a) and ~~which must be Eligible Assignees~~(ii) ~~willing to provide~~ the pro forma Consolidated Secured Net Leverage Ratio of Borrower (calculated without netting the cash proceeds of such Incremental ~~Loan Commitments~~ Loans) does not exceed 3.00:1.00 (the “Ratio Incremental Basket”); provided that when calculating the Consolidated Secured Net Leverage Ratio for purposes of this Section 2.15(a) at any time, the maximum amount of Indebtedness that Borrower is permitted to incur under its undrawn commitments under (A) the ABL Credit Agreement as in ~~their own discretion~~effect at such time and (B) the Con-way Bridge Credit Agreement as in effect at such time shall, in each case, be deemed outstanding and secured by a Lien. Such notice shall set forth (ix) the amount of the Incremental ~~Loan~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $~~5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~5,000,000), (iiy) the date on which such Incremental ~~Loan~~ Commitments are requested to become effective (which shall not be less than 10 ten (10) Business Days nor more than 60 sixty (60) days after the date of such ~~notice~~notice (or such longer or shorter periods as Agent shall agree), ) and (~~iii~~ii) whether such Incremental ~~Loan Commitments~~ Loans are ~~commitments~~ intended to ~~make additional~~ be increases to the existing Loans or ~~commitments~~ are intended to ~~make term loans~~ be a new tranche of Loans with terms different from the ~~Loans (“Other~~ Loans~~”). (b) The~~ . Borrower may seek Incremental ~~Loan Commitments~~ Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender~~ or any Additional Lender. (b) It shall ~~execute and deliver~~ be a condition precedent to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions incurrence of the Incremental Loans that (~~excluding amortization~~i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after the incurrence of such the Incremental Loan, ~~maturity, pricing, fees~~ (ii) the representations and ~~rate floors)~~ warranties set forth in Section 4 and in each other Loan Document shall be ~~identical to those~~ true and correct in all material respects on and as of the date the Incremental Loans ~~except as otherwise~~ are made and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.15(c); provided that the foregoing clauses (i) and (ii) will not be required to apply to the extent that the proceeds of the Incremental Loans are being used to finance a Limited Condition Acquisition. (c) The terms of the Incremental Loans shall be determined by Borrower and the Persons providing the Incremental Loans (each, an “Incremental Lender”) and set forth ~~herein. Without the prior written consent of the Required Lenders,~~ in an Incremental Amendment; provided that (i) the final maturity date of any ~~Other~~ Incremental Loans shall be no earlier than the Latest Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of any then-existing Loans, (iii) the Incremental Loans will rank pari passu in right of payment and with respect to security with the Loans, (iv) none of the ~~Loans.~~ borrower or guarantors with respect to the Incremental Loans shall be a Person that is not a Credit Party and the Incremental Loans shall not be secured by assets that do not constitute Collateral, (cv) with respect to any Incremental Loans incurred pursuant to clause (a) of this Section 2.15, if the ~~initial yield~~ All-in Yield on such ~~Other~~ Incremental Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the ~~applicable margin then~~ initial All-in ~~effect~~ Yield for ~~Eurocurrency~~ the Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the ~~applicable margin then in effect~~ Applicable Margin for the Loans shall automatically be increased by the Yield Differential, effective upon the making of the ~~Other~~ Incremental Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on the Loans as necessary to ensure the Incremental Loans are “fungible” with the existing Loans~~; provided that~~), (vi) the Incremental Loans may share ratably or less than ratably (but not more than ratably) in any prepayments hereunder and (vii) to the extent ~~any portion~~ the terms of the ~~Yield Differential is attributable~~ Incremental Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above), such terms shall be reasonably satisfactory to ~~a higher “LIBOR floor” being applicable to such Other~~ Agent. (d) In connection with any Incremental Loans, Borrower, Agent and each applicable Incremental Lender shall execute and deliver to Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (an “Incremental Amendment”) and such ~~floor~~ other documentation as Agent shall ~~only be included in~~ reasonably specify to evidence the ~~calculation~~ Incremental Loans of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingeach Incremental Lender. ~~The Administrative~~ Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan Assumption Agreement~~Amendment. ~~Each of the parties hereto hereby agrees that~~Any Incremental Amendment may, ~~upon the effectiveness~~ without consent of any ~~Incremental Loan Assumption Agreement~~other Lender, effect such amendments to this Agreement ~~shall~~ and the other Loan Documents as may be ~~deemed amended~~ necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effect the ~~extent (but only to the extent)~~ provisions of this Section 2.15, including any amendments necessary to ~~reflect the existence and terms of the Incremental Loan Commitment and~~ establish the Incremental Loans ~~evidenced thereby,~~ as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the ~~Administrative~~ reasonable opinion of Agent and Borrower in connection with the ~~Borrower may revise this Agreement to evidence~~ establishment of such ~~amendments. (d) Notwithstanding the foregoing~~new class or tranche, ~~no Incremental Loan Commitment shall become effective under~~ in each case on terms consistent with this Section ~~2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied~~2.15. (e) ~~Each of the parties hereto hereby agrees that the Administrative Agent may,~~ This Section 2.15 shall supersede any provision in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, Section 2.9 or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation12.2.

Appears in 1 contract

Samples: Senior Secured Term Loan Credit Agreement (XPO Logistics, Inc.)

Incremental Loans. (a) ~~The~~ After giving effect to, and by virtue of, Amendment No. 1, the Borrower ~~may~~and the Tranche B Revolving Lenders have established the Tranche B Revolving Commitments on the terms set forth in Amendment No. 1 utilizing $41,470,588.23 of the $75,000,000 under clause (x) of the definition of Maximum Incremental Facilities Amount. After the Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request increases of any-then existing Tranche of Revolving Commitments (each increase in Commitment pursuant to this sentence, ~~request Incremental Loan Commitments~~a “Supplemental Revolving Commitment”) hereunder, in an aggregate amount for all such Supplemental Revolving Commitments not ~~to exceed the Incremental Amount~~ in excess of, at the time the respective Supplemental Revolving Commitments become effective, the Maximum Incremental Facilities Amount after giving effect to Amendment No. 1 and the establishment of the Tranche B Revolving Commitments. Each such ~~Incremental Loan~~ notice relating to Supplemental Revolving Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the ~~Incremental Loan~~ Borrower proposes that the Supplemental Revolving Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000~~ date not less than 10 Business Days (or ~~equal to the remaining Incremental Amount or in each case~~ such ~~lesser amount approved by~~ shorter period as the Administrative ~~Agent), (ii~~Agent may agree) after the date on which such ~~Incremental Loan~~ notice is delivered to the Administrative Agent and (ii) if applicable, the Tranche (or Tranches) of Revolving Commitments ~~are requested~~ to ~~become effective~~ be so increased (~~which shall not be less than 10 Business Days nor~~ and, if more than ~~60 days after~~ one Tranche of Revolving Commitments will be increased, the ~~date~~ amount of the aggregate Supplemental Revolving Commitment to be allocated to each such ~~notice~~Tranche); provided, that (x) any Lender offered or approached to provide all or a portion of any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (~~iii~~y) ~~whether~~ any Person that the Borrower proposes to become a New Lender, if such ~~Incremental Loan Commitments are commitments~~ Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to ~~make additional~~ the Administrative Agent, and to the extent its consent would be required to assign Loans ~~or commitments~~ to ~~make term loans with terms different from~~ any such Eligible Assignee, each Issuing Lender and the ~~Loans (“Other Loans”)~~Swingline Lender. (b) ~~The Borrower may seek Incremental Loan~~ Such Tranche B Revolving Commitments ~~from existing Lenders (each~~ shall become effective as of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewiththe Amendment No. ~~The Borrower and each Incremental Term Lender shall execute and deliver~~ 1 Effective Date pursuant to the ~~Administrative Agent an Incremental Loan Assumption Agreement and such other documentation~~ terms of Amendment No. 1. Such Supplemental Revolving Commitments shall become effective as ~~the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ of the ~~Incremental Loans (excluding amortization~~applicable Increased Amount Date; provided, ~~maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders,~~ that: (i) no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Supplemental Revolving Commitments and the ~~final maturity date~~ making of any ~~Other~~ New Loans ~~shall be no earlier than~~ pursuant thereto and any transaction consummated in connection therewith subject to the ~~Maturity Date~~Permitted Acquisition Provisions (as defined below) |US-DOCS\115543490.9|| and the Limited Condition Acquisition Provision, ~~and~~ in connection with any acquisition or investment being made with the proceeds thereof; (ii) the ~~average life to maturity~~ proceeds of any Supplemental Revolving Commitments shall be used, at the discretion of the ~~Other Loans shall be no shorter than the average life to maturity of the Loans.~~Borrower, for any purpose not prohibited by this Agreement; (~~c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x~~iii) the ~~margin above~~ Supplemental Revolving Commitments shall benefit, ratably with the ~~Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making~~ other Commitments in the same ~~receive a fee directly or indirectly~~ Tranche, from the ~~Borrower or any Subsidiary for doing so (~~guarantees under the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans Guarantee and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor Collateral Agreement and shall only be ~~included in~~ guaranteed by the ~~calculation of~~ Guarantors; (iv) the ~~Yield Differential to~~ Supplemental Revolving Commitments shall be secured by the ~~extent such floor is greater than~~ Liens on the ~~higher of~~ Collateral on a pari passu basis with the ~~Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time~~ Liens securing all other Obligations and the ~~“LIBOR floor” applicable to the initial Loans, and,~~ Obligations with respect to ~~such excess,~~ the ~~“LIBOR floor” applicable to~~ Supplemental Revolving Commitments shall have the ~~outstanding Loans shall be increased to an amount not to exceed~~ same payment priority as the ~~“LIBOR floor” applicable to such Other Loans prior to any increase~~ other Obligations in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.same Tranche; (dv) ~~Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness,~~ the conditions set forth in Section ~~4.02~~ 2.34 shall be satisfied, if applicable; (vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the same terms as the Tranche being so increased (other than with respect to upfront fees) and pursuant to the same documentation applicable to such Tranche; (vii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and (viii) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Security Documents as may be reasonably necessary or advisable to ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. |US-DOCS\115543490.9|| Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any Restricted Subsidiary to finance, in whole or in part, a Permitted Acquisition, then to the extent so required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) 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 interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the 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 (B) there need not be a condition to borrowing that there be no Default or Event of Default other than there shall be no Event of Default under Sections 8.1(a) or (f) after giving effect to such incurrence (“Permitted Acquisition Provisions”). (c) On any date on which any Incremental Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Commitment. (d) For purposes of this Agreement, any New Loans or Incremental Commitments shall be deemed to be Revolving Loans or Revolving Commitments, respectively. Each 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 opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25. (e) ~~Each~~ Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the ~~parties~~ Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto ~~hereby agrees that~~ as Exhibit L-1 (the ~~Administrative Agent may~~“Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in ~~consultation with the Borrower~~each case, ~~take any and all action~~ such other form as may be reasonably ~~necessary~~ acceptable to ~~ensure that~~ the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all ~~Incremental Loans~~ intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments of such increased Tranche. (~~other than Other~~ f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each New |US-DOCS\115543490.9|| Lender providing a portion of such Supplemental Revolving Commitment, and each such New 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, Swingline Loans), ~~when originally made~~Local Loans, ~~are included~~ Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each ~~Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring~~ Lender (including each ~~outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing~~ such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of ~~each Incremental Loan~~such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or ~~by allocating a portion~~ prior to the effectiveness of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion~~ such Supplemental Revolving Commitment be prepaid from the proceeds of ~~Eurocurrency~~ additional Revolving Loans ~~to ABR Loans required by the preceding sentence~~ made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be ~~subject to~~ accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation2.11.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Revlon Inc /De/)

Incremental Loans. (a) ~~The Borrower may, by written notice~~ Subject to the ~~Administrative Agent~~ terms and conditions hereof, each Incremental Dollar Lender severally agrees to make loans in Dollars on a revolving credit basis to the Company ("Incremental Dollar Loans") from time to ~~time~~time during the period from August 18, ~~request Incremental Loan Commitments, in an amount not~~ 2000 to ~~exceed~~ and including the Incremental ~~Amount at~~ Commitment Termination Date; provided, that no Incremental Dollar Loan shall be made if, after giving effect to the ~~time~~ making of such ~~Incremental~~ Loan ~~Commitments are established~~and the simultaneous application of the proceeds thereof, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the sum of the aggregate amount of the Domestic Revolving Credit Exposure of all the Domestic Lenders and the aggregate principal amount outstanding of the Incremental Dollar Loans would exceed the Domestic Borrowing Base then in effect or (ii) the aggregate principal amount outstanding of the Incremental Dollar Loans would exceed the Incremental Dollar Credit Commitments; and provided, further, that the making of each Incremental Dollar Loan ~~Commitments being requested (which~~ shall be ~~in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal~~ subject to the ~~remaining Incremental Amount~~ Domestic Revolving Credit Commitments , being fully utilized (except to the extent a portion thereof may be reasonably reserved by the Borrower to meet its expected requirements for the issuances of Letters of Credit.) Amounts borrowed under this subsection 3A.1(a) may be repaid in whole or in ~~each case such lesser amount approved by~~ part and, up to but excluding the ~~Administrative Agent)~~Incremental Commitment Termination Date, reborrowed, all in accordance with the terms and conditions hereof. The Incremental Dollar Loans may from time to time be (i) Eurodollar Loans, (ii) ~~the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and~~ ABR Loans or (iii) ~~whether such~~ a combination thereof, as determined by the Company and set forth in the notice of borrowing or notice of conversion with respect thereto; provided, that (x) no Eurodollar Loan shall be made after the day that is one month prior to the Incremental ~~Loan Commitments are commitments~~ Commitment Termination Date and (y) any Incremental Dollar Loans to ~~make additional Loans or commitments to make term loans with terms different from the Loans (“Other~~ be made on August 18, 2000 shall be made entirely as ABR Loans”). (b) ~~The~~ Subject to the terms and conditions hereof, each Incremental Sterling Lender severally agrees to make loans in Pounds Sterling on a revolving credit basis to the UK Borrower ~~may seek~~ ("Incremental Sterling Loans" and, together with the Incremental Dollar Loans, the "Incremental Loans") from time to time during the period from August 18, 2000 to and including the Incremental Commitment Termination Date; provided, that no Incremental Sterling Loan ~~Commitments from existing Lenders (each of which~~ shall be ~~entitled to agree or decline to participate in its sole discretion) and additional banks~~made if, ~~financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver~~ after giving effect to the ~~Administrative Agent an Incremental~~ making of such Loan ~~Assumption Agreement~~ and ~~such other documentation as~~ the ~~Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ simultaneous application of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lendersproceeds thereof, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of ~~such~~ the UK Revolving Credit Exposure of all the UK Lenders and the aggregate principal amount outstanding of the Incremental Sterling Loans would exceed the UK Borrowing Base then in efffect or (ii) the aggregate principal amount outstanding of the Incremental Sterling Loans would exceed the Incremental Sterling Credit Commitments; and provided, further, that the making of each Incremental Sterling Loan shall be ~~further increased for all Lenders on a pro rata basis~~ subject to the ~~extent necessary~~ UK Revolving Credit Commitments being fully utilized. Amounts borrowed under this subsection 3A.1(b) may be repaid in whole or in part and, up to ~~avoid any reduction~~ but excluding the Incremental Commitment Termination Date, reborrowed, all in accordance with the terms and conditions hereof. The Incremental Sterling Loans may from time to time be (i) Domestic Sterling Loans, (ii) Sterling Base Rate Loans or (iii) a combination thereof, as determined by the UK Borrower and set forth in the ~~amortization payments~~ notice of borrowing or notice of conversion with respect thereto; provided, that (x) no Domestic Sterling Loan shall be made after the day that is one month prior to ~~which~~ the ~~Lenders were entitled before such recalculation~~Incremental Commitment Termination Date and (y) any Incremental Sterling Loans to be made on August 18, 2000 shall be made entirely as Sterling Base Rate Loans.

Appears in 1 contract

Samples: Credit and Guarantee Agreement (Remington Products Co LLC)

Incremental Loans. (a) The ~~Borrower may~~Borrowers may at any time or from time to time after the Closing Date, by ~~written~~ notice to the ~~Administrative~~ Agent ~~from time~~ (whereupon the Agent shall promptly deliver a copy to ~~time,~~ each of the Lenders) request ~~Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount additional tranches of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans ~~with terms different from~~ (the ~~Loans (~~“~~Other~~ New Loans”)~~. (b) The Borrower~~ , which may ~~seek Incremental Loan Commitments from existing Lenders (each of which shall~~ be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the ~~Incremental~~ same class as any existing class of Loans or a separate class of Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “~~Yield Differential~~New Commitments”~~), then~~ ) for the ~~applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making~~ purpose of ~~the Other Loans~~funding Preferred Stock Redemptions; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time that both immediately before and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon immediately after the effectiveness of any Incremental ~~Loan Assumption Agreement, this Agreement shall be deemed amended~~ Amendment referred to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectivenessbelow, the conditions set forth in Section ~~4.02~~ 4.2(a)-(d) shall be satisfied. . The terms and provisions of New Commitments (and the Loans in respect of the foregoing) shall be as agreed between the Borrowers, the lenders providing such New Commitments and the Required Lenders; provided, that, unless otherwise agreed by the Required Lenders: (a) such New Commitments shall (x) rank pari passu in right of payment and of security with the Initial Term Loan made on the Closing Date and (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor, (b) New Loans shall not mature earlier than the Maturity Date, (c) New Loans shall not have any scheduled amortization, (d) the New Loans may not participate in optional prepayments and mandatory prepayments on a greater than pro rata basis than the Loans, (e) ~~Each of~~ the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence proceeds shall be ~~subject~~ used to ~~Section 2.15. If~~ fund Preferred Stock Redemptions and (f) the material terms of any ~~Incremental Loan is to be allocated to an existing Interest Period for~~ such New Commitments, taken as a ~~Eurocurrency Borrowing~~whole, ~~then the interest rate thereon for such Interest Period and the other economic consequences thereof~~ shall be ~~as set forth in the applicable Incremental Loan Assumption Agreement. In addition,~~ no more favorable to the ~~extent any Incremental Loans are not Other~~ new Lenders than those applicable to the Loans, . The Borrowers shall offer each of Lender the ~~scheduled amortization payments under Section 2.09 required~~ opportunity to ~~be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders~~ provide New Commitments on a pro rata basis (based on such Lender’s Pro Rata Share of the Loans), but no Lender shall be obligated to provide any New Commitments unless it so agrees. (b) Each notice from the Borrowers pursuant to this Section shall set forth the requested amount and proposed terms of the relevant New Loans and the date on which the Borrower proposes that the same shall be effective. New Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make a portion of any New Loan) or by any new lender approved by the Required Lenders (each such lender, an “Additional Lender”). New Commitments shall become effective under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each existing Lender agreeing to provide such New Commitment, if any, each Additional Lender agreeing to provide such New Commitment, if any, and the 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 Agent and the Borrowers, to effect the provisions of this Section 2.8. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions as the Borrowers and the Lenders providing such Commitment shall agree, including, to the extent ~~necessary~~ requested by the Agent, receipt by the Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to ~~avoid~~ the Loan Parties, in each case, consistent with those delivered on the Closing Date and (b) supplemental or reaffirmation agreements and/or such amendments to the Security Documents as may be requested by the Agent in order to ensure that any ~~reduction in~~ New Commitment are provided with the ~~amortization payments to which~~ benefit of the ~~Lenders were entitled before such recalculation~~applicable Loan Documents.

Appears in 1 contract

Samples: Credit Agreement (Tabula Rasa HealthCare, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Copart Inc)

Incremental Loans. (a) ~~The~~ Borrower ~~may, by written notice to the Administrative Agent~~ may from time to time, on not less than five (5) Business Days’ notice request ~~Incremental~~ the establishment of (x) one or more term loan commitments, which may be in the form of a new tranche of term loans or an increase in the amount of the Term Loans (such new term loan commitments or increase, the “New Term Loan Commitments”) or (y) one or more revolving loan commitments, which shall be an increase in the amount of the Revolving Credit Commitments (such increased commitments, the “New Revolving Loan Commitments” and together with the New Term Loan Commitments, the “New Loan Commitments”), provided, in ~~an amount not to exceed the Incremental Amount~~ each case, that at the time of any such ~~Incremental~~ request and on the date the New Loan Commitments ~~are established~~shall be effective (the “Increased Amount Date”) (and after giving effect thereto and the use of the proceeds thereof), ~~from one~~ (i) no Default or ~~more Incremental Term~~ Event of Default exists and (ii) Borrower shall have a (A) Total Leverage Ratio (on a pro forma basis as of the most recently completed calendar quarter for which financial statements have been prepared and finalized by Borrower) of less than the lesser of 3.00 to 1.00 and 0.25 to 1.00 less than the applicable covenant level and (B) Senior Secured Leverage Ratio (on a pro forma basis as of the most recently completed calendar quarter for which financial statements have been prepared and finalized by Borrower) of less than the lesser of 2.50 to 1.00. Each New Loan Commitment shall be in an aggregate principal amount of at least $10,000,000 and in integral multiples of at least $5,000,000 and the aggregate principal amount of all New Loan Commitments shall not exceed $100,000,000.Each request for a New Loan Commitment shall set forth the requested amount and proposed terms of the relevant New Loan Commitment and the Lenders ~~(which may include any existing Lender and which must be Eligible Assignees)~~ or other Persons willing to provide such ~~Incremental~~ New Loan Commitments. New Loan Commitments ~~in their own discretion. Such notice shall set forth (i)~~ may be made by any existing Lender or if necessary to achieve the full amount of the ~~Incremental~~ requested New Loan ~~Commitments being requested~~ Commitment, any other Person that qualifies as an Eligible Assignee (any such Person, an “New Lender”), provided that no Person shall be a New Lender without the consent of Administrative Agent (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which consent shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”unreasonably withheld). (b) The ~~Borrower may seek Incremental~~ making of any Loan ~~Commitments from existing Lenders~~ under this Section 2.18 (a “New Term Loan” or a “New Revolving Loan”, as applicable, and collectively, the “New Loans”) shall (i) be subject to each ~~of which shall be entitled to agree or decline to participate~~ condition set forth in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement Section 4.2 and such other ~~documentation~~ conditions as Borrower, the applicable Lenders and Administrative Agent shall agree (including delivery of any legal opinions or other documents reasonably ~~specify~~ requested by Administrative Agent in connection with any such transaction); and (ii) be documented pursuant to ~~evidence~~ a supplement or joinder to this Agreement executed by Borrower, each applicable New Lender and Administrative Agent. Any New Loan Commitments shall be designated in the ~~Incremental Loan Commitment~~ applicable supplement or joinder either as a separate tranche (in the case of term loans) or an increase to the existing Term Loans or Revolving Credit Commitments, as applicable (in each ~~Incremental Term Lender.~~ case a “Tranche”), for all purposes of this Agreement. (c) The terms and provisions of the ~~Incremental~~ New Loans ~~(excluding amortization~~and New Loan Commitments shall, ~~maturity, pricing, fees and rate floors) shall be identical to those of the Loans~~ except as otherwise set forth ~~herein~~herein or in the applicable supplement, be identical to those applicable to the Term Loans or Revolving Loans, as the case may be. ~~Without the prior written consent of the Required Lenders~~In any event, (i) ~~the final maturity date of any Other~~ such New Loans shall (x) rank pari passu in right of payment and of security with all other Loans and (y) in the case of New Term Loans, be ~~no earlier than~~ entitled to share in prepayments pro rata with the ~~Maturity Date~~other Term Loans (unless the applicable New Term Lenders agree to take a lesser share of certain prepayments), ~~and~~ (ii) with respect to each New Term Loan, the weighted average life to maturity of ~~the Other~~ all New Term Loans shall be no shorter than the weighted average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any ~~Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other~~ existing Term Loans, ~~being referred to herein as “OID”), the amount of such OID divided by the lesser of~~ (1iii) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to ~~such excess~~any New Term Loan, the ~~“LIBOR floor”~~ maturity date for any New Term Loan shall not be earlier than the maturity date with respect to the Term Loans, as applicable, (iv) the amortization schedule applicable to ~~the outstanding~~ any Tranche of New Loans shall be ~~increased to an amount not to exceed~~ determined by Borrower and the ~~“LIBOR floor”~~ applicable New Lenders, (v) the interest rates, fees (including any original issue discount), other pricing-related provisions and yield applicable to any New Loans shall be determined by Borrower and the applicable New Lenders and shall be set forth in each applicable supplement; provided that the All-in Yield for any New Term Loans shall not be more than 0.50% higher than the All-in Yield for any Term Loans outstanding on the date of the issuance of such ~~Other~~ New Term Loans ~~prior~~ unless the interest rate on such outstanding Term Loans is increased so that the All-in Yield on such outstanding Term Loans is not less than the All-in Yield for the New Term Loans minus 0.50%, and (vi) will constitute “Senior Debt” or similar terms under and as such terms of defined in each Subordination Agreement. Notwithstanding anything to the contrary in Section 11.11, each applicable supplement or joinder may, without the consent of any ~~increase~~ other Lender, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the ~~applicable margin applicable~~ opinion of Administrative Agent, to ~~such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to~~ effect the ~~effectiveness~~ provisions of ~~each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement,~~ this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendmentsSection 2.18. (d) ~~Notwithstanding the foregoing~~On each Increased Amount Date, ~~no Incremental~~ each New Lender with a New Revolving Loan Commitment shall ~~become effective under this Section 2.04 unless~~ make a Revolving Loan to Borrower the proceeds of which will be used to prepay the Revolving Loans of the other Lenders immediately prior to such Increased Amount Date, so that, after giving effect thereto and to any other borrowings and prepayments being made on ~~the date of~~ such ~~effectiveness~~date, the ~~conditions set forth in Section 4.02 shall be satisfied. (e) Each of~~ Revolving Loans outstanding are held by the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a Lenders pro rata ~~basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing~~ based on their Revolving Credit Commitments after giving effect to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationIncreased Amount Date.

Appears in 1 contract

Samples: Credit Agreement (Sterling Construction Co Inc)

Incremental Loans. (a) ~~The~~ Each Borrower may, by written notice to the Administrative Agent from time to time, request (x) Incremental ~~Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental~~ Term Loan Commitments ~~are established,~~ from one or more Incremental Term ~~Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible ~~Assignees~~Assignees and (y) ~~willing to provide such~~ Incremental ~~Loan~~ Revolving Credit Commitments ~~in their own discretion~~from one or more Incremental Revolving Lenders; provided that the aggregate amount of Incremental Term Loans and/or Incremental Revolving Commitments so requested by the Borrowers shall not exceed the Incremental Loans Amount. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount ~~or in each case such lesser amount approved by the Administrative Agent~~with respect to Incremental Term Loan Commitments), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), ) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (b) ~~The~~ Each Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Loan Lenders in connection therewith. The applicable Borrower and each Incremental ~~Term~~ Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Loan Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the applicable Borrower may revise this Agreement to evidence such ~~amendments~~amendments (without the consent of any other Lender); provided, that: (i) the Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the terms of the Incremental Revolving Credit Commitments and Incremental Revolving Loans shall be identical to the Revolving Credit Commitments and the Revolving Loans; (ii) the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except as to maturity, interest rates, fees and amortization (which shall be subject to the following clauses (x) through (z)) and except as otherwise agreed by the Required Lenders; provided that unless otherwise agreed by the Required Lenders, (x) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (y) the average life to maturity of the Other Term Loans shall be no shorter than the average life to maturity of the Term Loans and (z) if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; and (iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments, the Administrative Agent and the applicable Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Administrative Agent shall promptly notify the applicable Borrower and the Revolving Credit Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to any Revolving Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender such participation interests in L/C Exposure outstanding on such Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrowers shall prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to such increased Revolving Credit Commitments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.26 unless (i) on the date of such effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), (x) the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be satisfied, (y) the Senior Secured Leverage Ratio shall be less than or equal to 4.50:1.00 on a pro forma basis and (z) the Administrative Agent shall have received a certificate as to the foregoing dated such date and executed by a Financial Officer of the Lead Borrower and (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Loan Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Lead Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (e) The Incremental Loans and Incremental Loan Commitments established pursuant to this Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Assumption Agreement applicable thereto. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans or any such new Incremental Loan Commitments.

Appears in 1 contract

Samples: Credit Agreement (Wca Waste Corp)

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Fifth RestatementSecond Amendment Effective Date, by written notice to the Administrative Agent ~~from time to time~~as provided below, request one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the “Incremental Loans”); provided that (i) the aggregate amount of Incremental Loans shall not exceed (A) $400,000,000 (the “Incremental Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) and any Guarantees incurred pursuant to Section 7.01(e)(ii)(A)(x) plus (B) additional amounts so long as both at the time of any such request and upon the effectiveness of any Incremental Loan ~~Commitments~~Amendment with respect to an Incremental Loan pursuant to this Section 2.01(c)(i)(B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans pursuant to this Section 2.01(c)(i)(B) had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fifth Restatement Effective Date and ending on December 31, ~~in an amount~~ 2014 and (y) 3.25 to 1.00 thereafterplus (C) additional Incremental Loans not to exceed $1,000,000,000 in the aggregate to be used solely for the purposes permitted under Section 6.08(e) (the “Xxxxxxxxxx Incremental Loans”); (ii) each Person which the Borrower shall request to make an Incremental Loan shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iii) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (iv) except for Incremental Loans requested under clause (x) above that are Tranche A Term Loans, the Incremental ~~Amount at~~ Loan Maturity Date of the ~~time~~ Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental ~~Loan Commitments are established~~Loans may be accelerated pursuant to Section 2.08(b)), ~~from one~~ and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); and (v) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or ~~more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Persons to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)Loans, (iix) the date on which such Incremental Loans shall be made, (y) the Incremental Loan ~~Commitments are requested to become effective~~ Maturity Date and the Incremental Loan Principal Payment Dates (~~which shall not be less than 10 Business Days nor more than 60 days after the date of~~ if any) for such ~~notice),~~ Incremental Loans and (~~iii~~z) ~~whether~~ the Applicable Margin that will apply to such Incremental ~~Loan Commitments are commitments~~ Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make ~~additional Loans or commitments to make term loans~~ such Incremental Loans, together with ~~terms different from~~ such other information reasonably requested by the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders Administrative Agent in connection therewith. ~~The Borrower and each~~ Amounts prepaid in respect of Incremental ~~Term~~ Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall ~~execute~~ be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and ~~deliver~~ delivery to the Administrative Agent of an Incremental Loan ~~Assumption Agreement and such other documentation as~~ Amendment (in form reasonable satisfactory to the Administrative ~~Agent shall reasonably specify to evidence~~ Agent) by such Person or Persons, the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms~~ Borrower and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other LoansAgent; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to that the effectiveness of ~~each~~ such Incremental Loan ~~Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement~~ Amendment shall be ~~deemed amended~~ subject to the ~~extent (but only to the extent) necessary to reflect the existence and terms~~ satisfaction of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date each of ~~such effectiveness,~~ the conditions set forth in this Section ~~4.02~~ and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be ~~satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary~~ deemed to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, refer to the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be ~~ratably increased by the aggregate principal amount~~ deemed to be a separate series (each a “Series”) of ~~such~~ Incremental Loans ~~and shall be further increased~~ for all ~~Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~purposes of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Loans. (a) ~~The Borrower may~~Each Incremental Revolving Facility Lender hereby agrees, ~~by written notice~~ severally and not jointly, to provide an Incremental Revolving Credit Commitment to the ~~Administrative Agent from time to time, request Incremental Loan Commitments,~~ Borrower on the Amendment No. 1 Effective Date in Dollars in an aggregate principal amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the ~~remaining~~ amount set forth opposite such Incremental ~~Amount or in each case such lesser amount approved by~~ Revolving Facility Lender’s name on Schedule I attached hereto (each, an “Incremental Revolving Credit Commitment” and, collectively, the ~~Administrative Agent~~“Incremental Revolving Credit Commitments”), on the terms set forth herein and in the Credit Agreement (~~ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice~~as amended hereby), and subject to the conditions set forth herein. The Incremental Revolving Credit Commitments shall be deemed to be “Revolving Credit Commitments” as defined in the Credit Agreement (~~iii~~as amended hereby) ~~whether such Incremental~~ for all purposes of the Loan Documents having terms and provisions identical to those applicable to the Revolving Credit Commitments ~~are commitments~~ outstanding immediately prior to ~~make additional Loans or commitments to make term loans with terms different from~~ the ~~Loans~~ Amendment No. 1 Effective Date (the “~~Other Loans~~Existing Revolving Credit Commitments”). (b) ~~The Borrower may seek~~ Each Incremental Revolving Facility Lender (i) confirms that a copy of the Credit Agreement and the other applicable Loan ~~Commitments from existing Lenders (each~~ Documents, together with copies of ~~which shall be entitled~~ the financial statements referred to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement therein and such other ~~documentation~~ documents and information as ~~the Administrative Agent shall reasonably specify~~ it has deemed appropriate to ~~evidence the~~ make its own credit analysis and decision to enter into this Amendment and make an Incremental ~~Loan Commitment of each~~ Revolving Credit Commitment, have been made available to such Incremental ~~Term~~ Revolving Facility Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and ; (ii) agrees that it will, independently and without reliance upon RBC Capital Markets (“RBCCM”) and BMO Capital Markets Corp. (together with RBCCM, the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “~~OID~~Incremental Amendment Arrangers”), ~~the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then~~ each in ~~effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein~~ its capacity as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time joint lead arranger and ~~the “LIBOR floor” applicable to the initial Loans, and,~~ joint bookrunner with respect to ~~such excess~~this Amendment, the ~~“LIBOR floor”~~ Administrative Agent, or any other Lender or agent and based on such documents and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Credit Agreement or the other applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan ~~Assumption Agreement. Each of the parties hereto hereby agrees that~~Documents, ~~upon the effectiveness of any Incremental Loan Assumption Agreement,~~ including this ~~Agreement shall be deemed amended to the extent~~ Amendment; (~~but only to the extent~~iii) ~~necessary to reflect the existence~~ appoints and ~~terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and~~ authorizes the Administrative Agent and the ~~Borrower may revise this~~ Collateral Agent to take such action as agent on its behalf and to exercise such powers under the Credit Agreement and the other Loan Documents as are delegated to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent ~~may~~and the Collateral Agent, ~~in consultation with~~ as the ~~Borrower~~case may be, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the ~~preceding sentence~~ terms thereof, together with such powers as are reasonably incidental thereto; and (iv) acknowledges and agrees that upon the Amendment No. 1 Effective Date, (1) such Incremental Revolving Facility Lender shall be a “Lender”, “Additional Revolving Lender” and a “Revolving Lender” under, and for all purposes of, the Credit Agreement and the other Loan Documents, and shall be subject to ~~Section 2.15. If any~~ and bound by the terms thereof, and shall perform all the obligations of and shall have all rights of a Lender and an Incremental ~~Loan is to~~ Revolving Facility Lender thereunder, (2) each of the Incremental Revolving Credit Commitments of each Incremental Revolving Facility Lender shall be ~~allocated to~~ an ~~existing Interest Period~~ “Additional Revolving Credit Commitment” and a “Revolving Credit Commitment” for ~~a Eurocurrency Borrowing, then~~ all purposes under the ~~interest rate thereon for such Interest Period~~ Credit Agreement and the other ~~economic consequences thereof~~ Loan Documents and (3) the Incremental Revolving Loans of each Incremental Revolving Facility Lender shall each be ~~as set forth in~~ an “Additional Revolving Loan” and a “Revolving Loan” (and have the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased same terms for all ~~Lenders on a pro rata basis to~~ purposes under the ~~extent necessary to avoid any reduction in~~ Credit Agreement and the ~~amortization payments to which the Lenders were entitled before such recalculation~~other Loan Documents).

Appears in 1 contract

Samples: Credit Agreement (Victory Capital Holdings, Inc.)

Incremental Loans. (a) ~~The~~ Borrower may, by written notice to ~~the Administrative~~ Agent from time to time, request ~~Incremental Loan Commitments~~an increase in the principal amount of the Loans, ~~in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ or request one or more additional tranches of Loans (the “Incremental ~~Term Lenders~~ Loans”); provided that the aggregate principal amount of Incremental Loans incurred under this Section 2.15 after the Amendment No. 6 Closing Date shall not exceed an amount equal to the sum of (~~which may include any existing Lender~~ a) $100 million plus (b) an additional amount so long as, after giving effect to the incurrence of such additional amount, (i) Borrower could incur $1.00 of additional Indebtedness under Section 7.1(a) and ~~which must be Eligible Assignees~~(ii) ~~willing to provide~~ the pro forma Consolidated Secured Net Leverage Ratio of Borrower (calculated without netting the cash proceeds of such Incremental ~~Loan Commitments~~ Loans) does not exceed 3.00:1.00 (the “Ratio Incremental Basket”); provided that when calculating the Consolidated Secured Net Leverage Ratio for purposes of this Section 2.15(a) at any time, the maximum amount of Indebtedness that Borrower is permitted to incur under its undrawn commitments under (A) the ABL Credit Agreement as in ~~their own discretion~~effect at such time and (B) the Con-way Bridge Credit Agreement as in effect at such time shall, in each case, be deemed outstanding and secured by a Lien. Such notice shall set forth (ix) the amount of the Incremental ~~Loan~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $~~5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~5,000,000), (iiy) the date on which such Incremental ~~Loan~~ Commitments are requested to become effective (which shall not be less than 10 ten (10) Business Days nor more than 60 sixty (60) days after the date of such ~~notice~~notice (or such longer or shorter periods as Agent shall agree), ) and (~~iii~~ii) whether such Incremental ~~Loan Commitments~~ Loans are ~~commitments~~ intended to ~~make additional~~ be increases to the existing Loans or ~~commitments~~ are intended to ~~make term loans~~ be a new tranche of Loans with terms different from the ~~Loans (“Other~~ Loans~~”). (b) The~~ . Borrower may seek Incremental ~~Loan Commitments~~ Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender~~ or any Additional Lender. (b) It shall ~~execute and deliver~~ be a condition precedent to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions incurrence of the Incremental Loans that (~~excluding amortization~~i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after the incurrence of such the Incremental Loan, ~~maturity, pricing, fees~~ (ii) the representations and ~~rate floors)~~ warranties set forth in Section 4 and in each other Loan Document shall be ~~identical to those~~ true and correct in all material respects on and as of the date the Incremental Loans are made, except to the extent that such representations or warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as ~~otherwise~~ of such earlier date and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.15(c); provided that the foregoing clauses (i) and (ii) will not be required to apply to the extent that the proceeds of the Incremental Loans are being used to finance a Limited Condition Acquisition. (c) The terms of the Incremental Loans shall be determined by Borrower and the Persons providing the Incremental Loans (each, an “Incremental Lender”) and set forth ~~herein. Without the prior written consent of the Required Lenders,~~ in an Incremental Amendment; provided that (i) the final maturity date of any ~~Other~~ Incremental Loans shall be no earlier than the Latest Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of any then-existing Loans, (iii) the Incremental Loans will rank pari passu in right of payment and with respect to security with the Loans, (iv) none of the ~~Loans.~~ borrower or guarantors with respect to the Incremental Loans shall be a Person that is not a Credit Party and the Incremental Loans shall not be secured by assets that do not constitute Collateral, (cv) with respect to any Incremental Loans incurred pursuant to clause (a) of this Section 2.15, (A) if the All-in Yield on any tranche of such Incremental Loans incurred within twelve (12) months of the Amendment No. 6 Closing Date exceeds the initial ~~yield~~ All-in Yield for the Term B Loans by more than 50 basis points (or, in the case of up to $500,000,000 aggregate principal amount of such Incremental Loans incurred on ~~such Other Loans (as determined by the Administrative Agent to be equal~~ or prior to the ~~sum of (x~~date that is 90 days after March 7, 2019, 75 basis points) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such ~~discount~~ excess above 50 or ~~fee~~75 basis points, ~~expressed~~ as ~~a percentage of the Other Loans~~applicable, being referred to herein as the “~~OID~~Term B Loan Yield Differential”), then the ~~amount of~~ Applicable Margin for such ~~OID divided~~ Term B Loans shall automatically be increased by the ~~lesser~~ Term B Loan Yield Differential applicable to such Term B Loans effective upon the making of the Incremental Loans (1and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on such Term B Loans as necessary to ensure the Incremental Loans are “fungible” with such Term B Loans) ~~the average life to maturity of such Other Loans~~ and (2B) ~~four)~~ if the All-in Yield on any such Incremental Loans incurred on or prior to the date that is 12 months following the Amendment No. 5 Closing Date exceeds the ~~applicable margin then~~ initial All-in ~~effect~~ Yield for ~~Eurocurrency~~ the Term B-1 Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term B-1 Loan Yield Differential”), then the ~~applicable margin then in effect~~ Applicable Margin for such Term B-1 Loans shall automatically be increased by the Term B-1 Loan Yield ~~Differential,~~ Differential applicable to such Term B-1 Loans effective upon the making of the ~~Other~~ Incremental Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on such Term B-1 Loans as necessary to ensure the Incremental Loans are “fungible” with such Term B-1 Loans~~; provided that~~),, (vi) the Incremental Loans may share ratably or less than ratably (but not more than ratably) in any prepayments hereunder and (vii) to the extent ~~any portion~~ the terms of the ~~Yield Differential is attributable~~ Incremental Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above), such terms shall be reasonably satisfactory to ~~a higher “LIBOR floor” being applicable to such Other~~ Agent. (d) In connection with any Incremental Loans, Borrower, Agent and each applicable Incremental Lender shall execute and deliver to Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (an “Incremental Amendment”) and such ~~floor~~ other documentation as Agent shall ~~only be included in~~ reasonably specify to evidence the ~~calculation~~ Incremental Loans of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingeach Incremental Lender. ~~The Administrative~~ Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan Assumption Agreement~~Amendment. ~~Each of the parties hereto hereby agrees that~~Any Incremental Amendment may, ~~upon the effectiveness~~ without consent of any ~~Incremental Loan Assumption Agreement~~other Lender, effect such amendments to this Agreement ~~shall~~ and the other Loan Documents as may be ~~deemed amended~~ necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effect the ~~extent (but only to the extent)~~ provisions of this Section 2.15, including any amendments necessary to ~~reflect the existence and terms of the Incremental Loan Commitment and~~ establish the Incremental Loans ~~evidenced thereby,~~ as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the ~~Administrative~~ reasonable opinion of Agent and Borrower in connection with the ~~Borrower may revise this Agreement to evidence~~ establishment of such ~~amendments. (d) Notwithstanding the foregoing~~new class or tranche, ~~no Incremental Loan Commitment shall become effective under~~ in each case on terms consistent with this Section ~~2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied~~2.15. (e) ~~Each of the parties hereto hereby agrees that the Administrative Agent may,~~ This Section 2.15 shall supersede any provision in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, Section 2.9 or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation12.2.

Appears in 1 contract

Samples: Refinancing Amendment (XPO Logistics, Inc.)

Incremental Loans. In order to request an Incremental Loan from a Lender, the Borrower must provide to each Lender Agent an irrevocable written request (aincluding by telecopier or other facsimile communication) ~~The Borrower may~~substantially in the form of Exhibit A, by ~~written notice to~~ 10:00 a.m. (Chicago time) three Business Days before the ~~Administrative Agent from time to time, request Incremental~~ requested date (the "Loan ~~Commitments, in an amount not to exceed the Incremental Amount at the time~~ Date") of such Incremental Loan, the requested Loan ~~Commitments are established, from one or more Incremental Term Lenders~~ Date (~~which may include any existing Lender and~~ which must be ~~Eligible Assignees~~a Business Day) ~~willing to provide~~ and the requested amount of such Incremental ~~Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (~~Loan, which ~~shall~~ must be in ~~minimum increments of $1,000,000 and~~ a minimum amount of $~~5,000,000 or~~ 1,000,000 and multiples thereof (or, if less, an amount equal to the ~~remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such~~ Maximum Incremental Loan ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice~~Amount)~~, and (iii) whether such~~ . An Incremental Loan ~~Commitments are commitments to make additional Loans or commitments to make term loans with terms different~~ may only be requested from a Conduit Lender unless, in the ~~Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each~~ case of ~~which shall be entitled to agree or decline to participate~~ an Uncommitted Conduit Lender, such Uncommitted Conduit Lender, in its sole discretion) , determines not to make such Incremental Loan, in which case the Borrower may request such Incremental Loan from the Related Bank Lenders. If the Loan is requested from an Uncommitted Conduit Lender and ~~additional banks~~such Uncommitted Conduit Lender determines, ~~financial institutions and other institutional lenders who will become Incremental Term Lenders~~ in ~~connection therewith. The Borrower and each Incremental Term~~ its sole discretion, to make the requested Loan, such Uncommitted Conduit Lender shall ~~execute and deliver~~ transfer to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (Borrower's Account the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan ~~Assumption Agreement~~by no later than 1:00 p.m. (Chicago time) on the Loan Date. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of If the Incremental Loan ~~Commitment and~~ is requested from a Committed Conduit Lender or the ~~Incremental Loans evidenced thereby~~Related Bank Lenders for a Lender Group, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period~~ 7.2 and the other ~~economic consequences thereof~~ terms and conditions hereof, such Committed Conduit Lender or the Related Bank Lenders for a Lender Group shall ~~be as set forth~~ transfer the applicable Lender Group's Ratable Share of each Loan (and, in the ~~applicable Incremental Loan Assumption Agreement. In addition~~case of each Related Bank Lender, ~~to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ its Commitment Percentage of its Lender Group's Ratable Share of such ~~Incremental Loans shall be ratably increased~~ Loan) into the Borrower's Account by no later than 1:00 p.m. (Chicago time) on the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationLoan Date.

Appears in 1 contract

Samples: Receivables Loan Agreement (Eagle Picher Technologies LLC)

Incremental Loans. (a) ~~The~~ At any time, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of one or more (x) incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loans, an “Incremental Term Loan”) and/or (y) increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed an amount of additional Indebtedness which would cause the Consolidated Total Leverage Ratio as of the Fiscal Quarter most recently ended prior to the incurrence of such additional Indebtedness, ~~from one or more Incremental Term Lenders~~ calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness, to exceed 2.00 to 1.00; and (~~which may include any existing Lender and which must be Eligible Assignees~~ii) ~~willing to provide such~~ the total aggregate amount for each Incremental Loan ~~Commitments in their own discretion. Such notice shall set forth~~ Commitment (~~i) the amount of~~ and the Incremental ~~Loan Commitments being requested (which~~ Loans made thereunder) shall not be ~~in minimum increments of $1,000,000 and~~ less than a minimum principal amount of $5,000,000 ~~or equal~~ or, if less, the remaining amount permitted pursuant to the ~~remaining~~ foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent)~~Loan Commitment shall be effective, which shall be a date not less than ten (ii10) Business Days after the date on which such ~~Incremental Loan Commitments are requested~~ notice is delivered to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)Administrative Agent. (b) The Borrower may ~~seek~~ invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan ~~Commitments~~ Commitment (any such Person, an “Incremental Lender”); provided, however, that no such Person may be an Incremental Lender unless such Person meets all of the requirements of an assignee of the rights and obligations of a Lender under Section 14.9 of this Agreement. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. (c) Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that: (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from ~~existing Lenders~~ the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X, in each case based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date); (iv) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (v) in the case of each Incremental Term Loan (the terms of which shall be ~~entitled to agree or decline to participate~~ set forth in ~~its sole discretion~~the relevant Incremental Agreement): (A) ~~and additional banks, financial institutions and other institutional lenders who will become~~ such Incremental Term ~~Lenders~~ Loan will mature and amortize in ~~connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver~~ a manner reasonably acceptable to the Administrative ~~Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence~~ Agent, the Incremental ~~Loan Commitment of each~~ Lenders making such Incremental Term ~~Lender. The terms~~ Loan and ~~provisions of~~ the ~~Incremental Loans (excluding amortization~~Borrower, ~~maturity, pricing, fees and rate floors) shall be identical~~ but will not in any event have a shorter weighted average life to ~~those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final~~ maturity ~~date of any Other Loans shall be no earlier~~ than the ~~Maturity Date, and (ii) the~~ remaining weighted average life to maturity of the ~~Other Loans~~ Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date; (B) the Applicable Margin for such Incremental Term Loan shall be ~~no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as~~ determined by the Administrative ~~Agent~~ Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; and (C) except as provided above, all other terms and conditions applicable to ~~be equal~~ any Incremental Term Loan, to the ~~sum~~ extent not consistent with the terms and conditions applicable to the Initial Term Loan, shall be reasonably satisfactory to the Administrative Agent and the Borrower; (vi) in the case of each Incremental Revolving Credit Increase (xthe terms of which shall be set forth in the relevant Incremental Agreement): (A) such Incremental Revolving Credit Increase shall mature on the ~~margin above~~ Revolving Credit Maturity Date, shall bear interest and be entitled to fees, in each case at the ~~Adjusted LIBO Rate~~ rate applicable to the Revolving Credit Loans, and shall be subject to the same terms and conditions as the Revolving Credit Loans, except for the payment of arrangement fees, upfront fees or similar fees which may be required in connection with or as a condition to any Lender’s or Incremental Lender’s agreement to provide an Incremental Revolving Credit Commitment; provided that if the upfront fees paid on such ~~Other Loans and~~ Revolving Credit Increase (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed calculated as a percentage of the ~~Other Loans, being referred to herein~~ principal amount thereof) exceed the upfront fees paid in respect of the existing Revolving Credit Commitments on the Closing Date (calculated as ~~“OID”~~a percentage of the principal amount thereof), the ~~amount~~ Borrower shall pay additional upfront fees to the Revolving Credit Lenders holding such existing Revolving Credit Commitments so that the upfront fees paid in respect of such ~~OID divided~~ Revolving Credit Increase are not higher than the upfront fees paid in respect of the existing Revolving Credit Commitments on the Closing Date; (B) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the ~~lesser~~ Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and (C) except as provided above, all of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and conditions applicable to the Revolving Credit Facility; (1vii) such Incremental Loan Commitments shall be effected pursuant to one or more Incremental Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Incremental Agreement 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 opinion of the Administrative Agent, to effect the provisions of this Section 5.13); and (viii) the ~~average life~~ Borrower shall deliver or cause to ~~maturity~~ be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such ~~Other Loans and~~ Incremental Loan and/or Incremental Loan Commitment) reasonably requested by Administrative Agent in connection with any such transaction. (2d) ~~four) exceeds~~ Any Incremental Lender making any Incremental Term Loan shall be entitled to the ~~applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein~~ same voting rights as the ~~“Yield Differential”~~existing Term Loan Lenders under the Term Loan Facility and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Initial Term Loan (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among the Initial Term Loan and the Incremental Term Loans)~~, then the applicable margin then in effect for~~ . The Incremental Term Loans shall ~~automatically~~ be ~~increased by the Yield Differential, effective upon the making of the Other~~ deemed to be Term Loans; provided ~~that, to the extent any portion~~ that such Incremental Term Loan shall be designated as a separate tranche of ~~the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor~~ Term Loans for all purposes of this Agreement. The Incremental Lenders shall ~~only~~ be included in ~~the calculation~~ any determination of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial LoansRequired Lenders, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (e) Any Incremental Lender with an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder. (f) Subject to the foregoing terms and conditions, on any Increased Amount Date on which (i) any Incremental Term Loan Commitment becomes effective, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Term Loan Lender hereunder with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental ~~Loans evidenced thereby~~Term Loan made pursuant thereto, ~~and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.~~ or (dii) ~~Notwithstanding the foregoing~~any Incremental Revolving Credit Increase becomes effective, no each Incremental ~~Loan~~ Lender with an Incremental Revolving Credit Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation a Revolving Credit Lender hereunder with ~~the Borrower, take any and all action as may be reasonably necessary~~ respect to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationRevolving Credit Commitment.

Appears in 1 contract

Samples: Credit Agreement (Fossil Group, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Sixth RestatementThird Amendment Effective Date (after having given effect to the Borrowing of the Incremental Tranche B-1 Term Loans thereon), by written notice to the Administrative Agent ~~from time to time~~as provided below, request ~~Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ one or more Lenders (including Persons who shall become Incremental Lenders pursuant to this Section 2.01(c)) to (x) establish an additional revolving credit facility (the “Incremental Revolving Facility” and any loans thereunder, the “Incremental Revolving Loans”) and/or increase the amount of their Revolving Commitments under the Revolving Credit Facility, or (in the case of a bank or other financial institution that is not an existing Lender) make available additional Revolving Commitments under the Revolving Credit Facility and/or (y) provide additional Term Loans and/ or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, the each, an “Incremental Term ~~Lenders (which may include~~ Loan Facility” and together with the Incremental Revolving Facilities, the ; Loans” and together with any ~~existing Lender and which must be Eligible Assignees) willing to provide such~~ Incremental ~~Loan Commitments in their own discretion. Such notice shall set forth~~ Revolving Loans, the “Incremental Loans”); provided that (i) ~~the~~ t he aggregate amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall ~~be ratably increased by~~ not exceed (A) $400,000,000 (the ~~aggregate principal amount of such~~ “Incremental ~~Loans~~ Starter Amount”) less any Permitted Additional Indebtedness incurred pursuant to Section 7.01(m) and ~~shall be further increased for all Lenders on a pro rata basis~~ any Guarantees incurred pursuant to ~~the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.~~Section 7.01(e)(ii)(A)(x) plus (B) additional amounts so long as both at

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be identical to those of the Loans except as otherwise set forth ~~herein~~herein or in the Incremental Loan Assumption Agreement. Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average life to maturity of the Other Loans shall be no shorter than the remaining average life to maturity of the Loans. , (ciii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1A) the average life to maturity of such Other Loans and (2B) four) exceeds the ~~applicable margin~~ Applicable Margin then in effect for ~~Eurocurrency~~ Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the ~~applicable margin~~ Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) the other terms and documentation in respect of such Other Loans~~; provided that~~, to the extent ~~any portion of~~ not consistent with the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans~~Term Facility, ~~such floor~~ shall ~~only~~ be ~~included in the calculation of the Yield Differential~~ reasonably satisfactory to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a pari passu basis with, the Loans. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.22 unless (i) on the date of such effectiveness, (x) the ~~conditions~~ representations and warranties set forth in ~~Section 4.02~~ Article III and in each other Loan Document shall be ~~satisfied~~true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Borrower’s Total Secured Leverage Ratio shall not exceed 2.50:1.00 on a pro forma basis after giving effect to such Incremental Loan Commitment, the incurrence of the Incremental Loans thereunder the use of proceeds thereof and the Administrative Agent shall have received a certificate to that effect showing such calculations in reasonable detail dated such date and executed by a Responsible Officer of the Borrower, (iii) all fees and expenses owing to the Administrative Agent and the Lenders in respect of such increase shall have been paid, (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 of the Existing Credit Agreement and (v) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, at the direction and in the sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Encumbrances) and (z) the Borrower shall have delivered, at the request of the Administrative Agent, to the Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such Mortgages as security for the Obligations. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Amendment Agreement (Supervalu Inc)

Incremental Loans. (ai) ~~The Borrower may~~So long as no Default or Event of Default has occurred and is continuing, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time prior to December 31, 2002, the Borrower may request pursuant to the procedure set forth in Section 2.16, the addition of an Incremental ~~Loan~~ Facility consisting of ------------ either a new tranche of revolving loans (each, an "Incremental ----------- Revolving Loan") or a new tranche of term loans (each, an "Incremental -------------- ----------- Term Loan"); provided however that the Borrower may not make a request --------- -------- for an Incremental Facility if after giving effect thereto the sum of all then outstanding Incremental Revolving Loans and unused Incremental Revolving Commitments, ~~in an amount not to~~ Incremental Term Loans and unused Incremental Term Commitments would exceed the then Maximum Incremental ~~Amount at the time such~~ Amount. Each Incremental Revolving Loan ~~Commitments are established, from one or more~~ and each Incremental Term ~~Lenders~~ Loan shall: (~~which~~ A) unless otherwise specifically provided in this Agreement, upon the effectiveness of the Incremental Revolving Commitment or Incremental Term Commitment relating thereto as provided in Section ------- 2.01(c)(ii), be deemed to be a Revolving Loan or a Term Loan, as ----------- applicable, for all purposes under this Agreement, including for purposes of the sharing of Collateral and guarantees under the Guaranty Agreements all on a pari passu basis with all other ---- ----- Obligations; (B) have such pricing as may ~~include any existing Lender~~ be agreed by the Borrower and ~~which must be Eligible Assignees) willing~~ the Banks agreeing to provide such Incremental Revolving Loans and/or Incremental Term Loans pursuant to the provisions of this Section 2.01(c) and Section 2.16; and (C) otherwise have all of the --------------- ------------ same terms and conditions as the Revolving Loans that are not Incremental Revolving Loans (if such Incremental Loans are Incremental Revolving Loans) or as the Term Loans that are not Incremental Term Loans (if such Incremental Loans are Term Loans). In addition, unless otherwise specifically provided in this Agreement, all references in the Loan Documents to Revolving Loans and to Term Loans shall be deemed, as the context requires, to include references to Incremental Revolving Loans and Incremental Term Loans, respectively, made pursuant to this Agreement. No Bank shall have any obligation to make an Incremental Loan unless and until it commits to do so. Subject to the proviso at the end of Section 2.16(a), Commitments in ~~their own discretion. Such notice~~ respect of --------------- Incremental Loans shall ~~set forth~~ become Commitments under this Agreement pursuant to (ix) ~~the amount of the~~ an amendment (each, an "Incremental Loan ~~Commitments being requested~~ Amendment") -------------------------- to this Agreement executed by the Borrower, each Bank or other approved financial institution agreeing to provide such Commitment (~~which~~ and no other Bank shall be ~~in minimum increments of $1,000,000~~ required to execute such amendment), and ~~a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by~~ the Administrative Agent~~), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice)~~, and (~~iii~~y) ~~whether such Incremental~~ any amendments to the other Loan ~~Commitments are commitments to make additional Loans or commitments to make term loans with terms different from~~ Documents (executed by the ~~Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion)~~ relevant Credit Party and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent ~~an Incremental Loan Assumption Agreement and such other documentation~~ only) as the Administrative Agent shall reasonably ~~specify~~ deem appropriate to ~~evidence~~ effect such purpose. Notwithstanding anything to the contrary contained herein, the effectiveness of such Incremental Loan ~~Commitment of each Incremental Term Lender. The terms and provisions of~~ Amendment shall be subject to the satisfaction on the date thereof and, if different, on the date on which the Incremental Loans ~~(excluding amortization~~are made, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Loan Assumption Agreement. Each~~ of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section ~~4.02 shall be satisfied.~~5.03. ------------ (eii) ~~Each of~~ So long as (x) the ~~parties hereto hereby agrees that~~ Borrower shall have given the Administrative Agent ~~may~~no less than five Business Days' prior notice of the effectiveness thereof and (y) any financial institution not theretofore a Bank which is providing an Incremental Revolving Commitment and/or an Incremental Term Commitment shall have become a Bank under this Agreement pursuant to an Incremental Loan Amendment, the Incremental Revolving Commitment and/or Incremental Term Commitment being requested by the Borrower shall become effective under this Agreement upon the effectiveness of such Incremental Loan Amendment. Upon such effectiveness, Schedule 2.01 shall be deemed ------------- amended to reflect such Commitments. In the event that an Incremental Facility shall have become effective, the Bank or Banks providing such Incremental Revolving Commitments or Incremental Term Commitments shall be deemed to have agreed, severally and not jointly, upon the terms and subject to the conditions of this Agreement, (A) with respect to Incremental Term Commitments, to make an Incremental Term Loan in ~~consultation~~ the amount of the Incremental Term Commitment of such Bank on the effective date of the applicable Increment Loan Amendment and (B) with respect to Incremental Revolving Commitments, to make from time to time during the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on period from the date of ~~each Incremental Loan, or by allocating a portion~~ the effectiveness of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan ~~Assumption Agreement. In addition~~Amendment through the Maturity Date, one or more Incremental Revolving Loans to the ~~extent any Incremental Loans are not Other Loans,~~ Borrower pursuant to the ~~scheduled amortization payments under~~ provisions of Section ~~2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the~~ 2.03 in an aggregate principal amount not ------------ exceeding at any time the Incremental Revolving Commitment of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before Bank at such ~~recalculation~~time.

Appears in 1 contract

Samples: Credit Agreement (Nexstar Broadcasting of the Wichita Falls LLC)

Incremental Loans. In addition to borrowings of Tranche I Revolving Loans, Tranche I Term Loans and Tranche II Term Loans specified in Section 2.01(a), (ab) ~~The~~ and (c), respectively: (i) at any time and from time to time during the Revolving Availability Period, the Borrower ~~may~~may request that the Lenders offer to enter into commitments to make Tranche II Revolving Loans to the Borrower; and (ii) at any time and from time to time prior to the Tranche III Term Loan Availability Date, the Borrower may request that the Lenders offer to enter into commitments to make Tranche III Term Loans to the Borrower in Dollars; it being understood in each case that such offer may be made by ~~written notice~~ any financial institution that is to become a Lender hereunder in connection with the making of such offer under this paragraph (e), so long as the Administrative Agent ~~from time~~ shall have consented to ~~time~~such financial institution being a Lender hereunder (such consent shall not be unreasonably withheld). In the event that one or more of the Lenders offer, ~~request~~ in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders making such offers, as to the fees (if any) to be payable by the Borrower in connection therewith and the Applicable Rate and (in the case of Tranche III Term Loans) amortization relating thereto, the Borrower, the Administrative Agent and such Lenders shall execute and deliver an Incremental Loan Agreement and such Lenders shall become obligated to make Tranche II Revolving Loans or Tranche III Term Loans, as applicable, under this Agreement in an amount equal to the amount of their respective Tranche II Revolving Commitments or Tranche III Term Loan Commitments, as applicable, as specified in ~~an amount not to exceed the Incremental Amount at the time~~ such Incremental Loan ~~Commitments are established, from one or more~~ Agreement. The Incremental ~~Term Lenders (which may include~~ Loans to be made pursuant to any ~~existing Lender and which must be Eligible Assignees) willing to provide such~~ Incremental Loan ~~Commitments~~ Agreement in ~~their own discretion~~response to any such request by the Borrower shall be deemed to be a separate "Series" of Tranche II Revolving Loans or Tranche III Term Loans, as applicable, for all purposes of this Agreement. ~~Such notice shall set forth~~ Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Commitments entered into pursuant to any request specified above (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $50,000,000, (ii) the aggregate outstanding principal amount of Incremental Loans of all Series, together with the aggregate unutilized Incremental Commitments of all Series, shall not exceed $200,000,000 at any time, (iii) the Tranche III Term Loan Commitments of any Series shall terminate on the earlier of the Tranche III Term Loan Availability Date and the date 30 days after the date of the respective Incremental Loan ~~Commitments being requested~~ Agreement for such Series and (~~which~~ iv) in no event shall the Tranche III Term Loan Agreement for any Series of Tranche III Term Loans provide for the final maturity of the Tranche III Term Loans of such Series to be ~~in minimum increments~~ later than December 1, 2004, nor shall such Tranche III Term Loan Agreement provide for amortization of ~~$1,000,000 and~~ the Tranche III Term Loans of such Series at a ~~minimum amount~~ rate faster (i.e. earlier) than the rate of ~~$5,000,000~~ amortization of the Tranche I Term Loans (the determination of whether or ~~equal~~ not such amortization is faster to ~~the remaining Incremental Amount or in each case such lesser amount approved~~ be made by the Administrative Agent)~~, (ii)~~ . Following agreement by the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and ~~each Incremental Term Lender shall execute and deliver~~ one or more of the Lenders as provided above, subject to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and ~~provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise~~ conditions set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.,

Appears in 1 contract

Samples: Credit Agreement (SCV Epi Vineyards Inc)

Appears in 1 contract

Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Incremental Loans. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time,~~ request ~~Incremental~~ the establishment of one or more new term loans (the “New Term Loan Commitments”) or the increase of the Dollar Revolving Commitments hereunder, in an aggregate amount ~~not to exceed the Incremental Amount at the time~~ for all such ~~Incremental~~ New Term Loan Commitments ~~are established, from one or more Incremental Term Lenders (which may include any existing Lender~~ and ~~which must be Eligible Assignees) willing to provide such Incremental Loan~~ increases of the Dollar Revolving Commitments not in ~~their own discretion. Such notice shall set forth~~ excess of (i) $150,000,000 (each such establishment or increase, a “Cash-Capped Incremental Facility”) plus (ii) up to an additional amount (each such establishment or increase, a “Ratio-Based Incremental Facility”) if the ~~amount~~ pro forma Consolidated Total Leverage Ratio is less than 2.75:1.00 (and, for the avoidance of doubt, for any Ratio-Based Incremental Facility, such Consolidated Total Leverage Ratio shall be calculated as though any Dollar Revolving Commitments to be incurred pursuant to this Section 2.25 were fully drawn), as of the ~~Incremental~~ end of the most recently ended Test Period. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments ~~being requested (~~or increase of the Dollar Revolving Commitments shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental~~ notice is delivered to the Administrative Agent; provided that (i) any Lender offered or approached to provide all or a portion of any New Term Loan Commitments ~~are requested~~ or increase of the Dollar Revolving Commitments may elect or decline, in its sole discretion, to ~~become effective~~ provide such New Term Loan Commitments or increase of the Dollar Revolving Commitments and (~~which shall not be less than 10 Business Days nor more than 60 days after~~ ii) any New Term Loan Commitments or increases to the ~~date~~ Dollar Revolving Commitments established pursuant to this Section 2.25 will count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Cash-Capped Incremental Facilities (to the extent permitted by the pro forma calculation of the Consolidated Total Leverage Ratio required prior to the incurrence of such ~~notice), and (iii) whether such~~ Ratio-Based Incremental ~~Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”~~Facility). (b) ~~The Borrower may seek Incremental~~ Such New Term Loan Commitments ~~from existing Lenders~~ or increase of the Dollar Revolving Commitments shall become effective as of such Increased Amount Date; provided that (~~each~~ i) the conditions set forth in Section 5.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such New Term Loan Commitments and to the making of ~~which shall be entitled~~ any Tranche of New Term Loans pursuant thereto or to ~~agree or decline~~ such increase of the Dollar Revolving Commitments and after giving effect to ~~participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders~~ any transaction consummated in connection therewith~~. The~~ ; (ii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 as of the end of the most recently ended Test Period; (iii) the proceeds of any New Term Loans shall be used for general corporate purposes of the Borrower and ~~each Incremental~~ its Subsidiaries (including Permitted Acquisitions and Investments permitted under Section 7.8); (iv) the New Term ~~Lender~~ Loans shall ~~execute~~ share ratably in the Collateral and ~~deliver~~ shall benefit ratably from the guarantees under the Guarantee and Collateral Agreement; (v) the New Term Loans shall share ratably in any mandatory prepayments of the existing Term Loans; (vi) the maturity date of New Term Loans thereof shall not be earlier than the Term Loan Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Term Loans; (vii) all terms and documentation with respect to any New Term Loans which differ from those with respect to the Term Loans shall be reasonably satisfactory to the Administrative Agent ~~an Incremental~~ (except to the extent permitted by clause (vi) of this Section and the last sentence of this paragraph); (viii) such New Term Loans or New Term Loan ~~Assumption Agreement~~ Commitments or increase of the Dollar Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and ~~such other documentation as~~ delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably ~~specify~~ requested by Administrative Agent in connection with any such transaction, including any supplements or amendments to ~~evidence~~ the ~~Incremental~~ Security Documents providing for such New Term Loans to be secured thereby. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Term Loan shall be determined by the Borrower and the applicable lenders of New Term Loans (each, a “New Term Lender”) and shall be set forth in the applicable Joinder Agreement. (c) On any Increased Amount Date on which any New Term Loan Commitments or increase of the Dollar Revolving Commitments becomes effective, subject to the foregoing terms and conditions, each lender with a New Term Loan Commitment or an increase of ~~each Incremental~~ the Dollar Revolving Commitments (each, a “New Lender”) shall become a Lender hereunder with respect to such New Term ~~Lender.~~ Loan Commitment or such increase of the Dollar Revolving Commitments, as the case may be. (d) The terms and provisions of the ~~Incremental Loans (excluding amortization~~New Term Loan Commitments of any Tranche shall be, ~~maturity~~except as otherwise set forth in the relevant Joinder Agreement, ~~pricing, fees and rate floors) shall be~~ identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other applicable Term Loans and ~~(y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary~~ for ~~doing so (the amount~~ purposes of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption this Agreement, ~~this Agreement~~ any New Term Loans or New Term Loan Commitments shall be deemed ~~amended~~ to be Term Loans. Each Joinder Agreement may, without the ~~extent (but only~~ consent of any other Lenders, effect such amendments to ~~the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment~~ this Agreement and the ~~Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental~~ other Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action Documents as may be ~~reasonably~~ necessary ~~to ensure that all Incremental Loans (other than Other Loans)~~or appropriate, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the ~~applicable Incremental Loan Assumption Agreement. In addition~~opinion of the Administrative Agent, to effect the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under~~ provisions of this Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation2.25.

Appears in 1 contract

Samples: Credit Agreement (Wesco Aircraft Holdings, Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request prior to the Term Loan Maturity Date, the establishment of Incremental Term Loan ~~Commitments,~~ Commitments in an aggregate amount not to exceed the Incremental Term Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental Term ~~Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (iA) the amount of ~~the~~ Incremental Term Loan Commitments being requested (which shall be in minimum increments of $~~1,000,000~~ 500,000 and a minimum amount of $~~5,000,000~~ 1,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Term Loan Amount), (iiB) the date on which such Incremental Term Loan Commitments are requested to become effective ~~(which shall not be less than 10 Business Days nor more than 60 days after the date of such notice),~~ and (~~iii~~C) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans having the same terms as the Term Loans on the Closing Date or commitments to make term loans with terms different from the Term Loans on the Closing Date (the “Other Term Loans”). (b) The Borrower may seek Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and~~ and, subject to the Administrative Agent’s consent (not to be unreasonably withheld, conditioned or delayed), additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of ~~each Incremental Term Lender~~such Person. The terms and provisions of the Incremental Term Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be identical to those of the Term Loans made pursuant to clause (i) of Section 2.01(a), except as otherwise set forth ~~herein~~herein or in the Incremental Loan Assumption Agreement, and any such terms not consistent with those of such Term Loans shall be reasonably satisfactory to the Administrative Agent. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the Other Term Loans shall be no shorter than the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Loans.~~ Term Loans made pursuant to clause (ci) of Section 2.01(a) and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (increased by the amount that any “LIBOR floor” applicable to such Other Term Loans at the applicable time exceeds the Adjusted LIBO Rate at such time) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “~~OID~~Discount”), the amount of such ~~OID~~ Discount divided by the lesser of (1A) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of such Other Term Loans and (2B) four) exceeds the ~~applicable margin~~ sum of the Applicable Margin then in effect for ~~Eurocurrency~~ Eurodollar Term Loans plus one fourth of the Closing Fees paid pursuant to Section 2.05(d) in respect of the Term Loans made pursuant to clause (i) of Section 2.01(a) by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then each of the ~~applicable margin~~ Initial Applicable Margin and the Additional Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental Term Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (dc) Notwithstanding the foregoing, no Incremental Term Loan Commitment shall become effective under this Section ~~2.04~~ 2.23 unless (i) on the date of such ~~effectiveness,~~ effectiveness the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be ~~satisfied~~satisfied shall be required to be satisfied and (y) at the time of and immediately after such effectiveness, no Default or Event of Default under Section 7.01(b), (c), (g) or (h) shall have occurred and be continuing) and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, (ii) the Incremental Term Loans shall rank pari passu in right of payment and be equal with respect to security under the Loan Documents and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party, (iii) all fees and expenses owing in respect of such Incremental Term Loan Commitments to the Administrative Agent and the Lenders shall have been paid and (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each Incremental Term Lender) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, including, without limitation, amendments to the Mortgages, datedown endorsements to the title policies, flood zone determinations and the other deliverables, pursuant to Section 4.02(g). (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. ~~This~~ With respect to Incremental Term Loans, this may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding ~~Eurocurrency~~ Eurodollar Term Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Term Loans to ABR Term Loans reasonably required by the ~~preceding sentence~~ Administrative Agent to effectuate the foregoing shall be subject to Section ~~2.15~~2.16. If any Incremental Term Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (AAC Holdings, Inc.)

Incremental Loans. ~~(a) The Borrower may~~At any time, the Borrowing Agent may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (a) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loan (any such additional term loan, an “Incremental Term Loan”); or (b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (i) after the Third Amendment Effective Date, the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed the greater of (A) $200,000,000 and (B) the amount of Consolidated Adjusted EBITDA for the immediately preceding four (4) prior Fiscal Quarters of the Borrowing Agent and its Subsidiaries, ~~from one or more~~ (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 for Incremental Term Loans and $5,000,000 for Incremental Revolving Credit Increases, or (in each case) a whole multiple of $1,000,000 in excess of such minimum amount, or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) no more than threetwo (32) Incremental Loan Commitments shall be permitted during the term of this Agreement. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowing Agent proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowing Agent shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (~~which~~ any such Person, an “Incremental Lender”); provided that the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may ~~include any existing Lender and which must be Eligible Assignees) willing~~ elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that: (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from the Borrowing Agent a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Consolidated Net Leverage Ratio will be at least 0.25 to 1.00 less than the maximum Consolidated Net Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.16(a) (including any adjustment based on a Material Acquisition), based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully drawn) and (z) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions); (v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement; (vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Obligations on a pari passu basis; (1) in the case of each Incremental Term Loan: (I) such Incremental Term Loan will mature and amortize on the same terms as the Closing Date Term Loans; (II) the Applicable Margin and pricing grid, if applicable, and SOFR Adjustment for such Incremental Term Loan shall be the same as the Applicable Margin and SOFR Adjustment for the Closing Date Term Loans on the applicable Increased Amount Date; (III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders, provided that no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Closing Date Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Closing Date Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.10, be identical to the terms and conditions applicable to the Closing Date Term Loans; (2) in the case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required. (3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and (4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction. (c) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this ~~Section 2.04 unless~~ Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the ~~date of~~ foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such ~~effectiveness,~~ Incremental Term Loan Commitment and the ~~conditions set forth in Section 4.02 shall be satisfied~~Incremental Term Loan made pursuant thereto. (e) ~~Each of~~ On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the ~~parties hereto hereby agrees that the Administrative Agent may~~foregoing terms and conditions, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental ~~Loan, or by allocating~~ Lender with an Incremental Revolving Credit Commitment shall become a ~~portion of each Incremental Loan~~ Lender under the Revolving Credit Facility hereunder with respect to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationRevolving Credit Commitment.

Appears in 1 contract

Samples: Credit Agreement (Construction Partners, Inc.)

Incremental Loans. In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a) ~~The Borrower may~~and (b) above, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time prior to the Incremental Loan Commitment Termination Date, the Borrower may request that the Lenders offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental Loan") under this paragraph (c). In the event that one or more of the Lenders offer, in their sole discretion, to enter into such commitments, and such Lenders and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments. The Incremental Loans to be made pursuant to any such agreement between the Borrower and one or more Lenders in response to any such request by the Borrower shall be deemed to be a separate "Series" of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, ~~in an~~ (i) the minimum aggregate principal amount ~~not to exceed the Incremental Amount at the time such~~ of Incremental Loan Commitments ~~are established~~entered into pursuant to any such request (and, ~~from~~ accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $5,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and Incremental Loans shall not exceed $100,000,000. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental ~~Term Lenders (which may include any existing~~ Loans pursuant to the foregoing provisions of this Section 2.01(c), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and ~~which must be Eligible Assignees) willing~~ conditions of this Agreement, to ~~provide~~ make such Incremental Loans to the Borrower in Dollars during the period from and including the date of such acceptance to but excluding the Incremental Loan ~~Commitments~~ Commitment Termination Date in ~~their own discretion. Such notice shall set forth (i)~~ an aggregate principal amount up to but not exceeding the amount of the Incremental Loan ~~Commitments being requested (which shall be in minimum increments~~ Commitment of ~~$1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which~~ such Incremental Loan ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ Lender in respect of such ~~notice)~~Series as in effect from time to time. Thereafter, and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver subject to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and ~~provisions~~ conditions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption this Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may ~~revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no~~ convert Incremental ~~Loan Commitment shall become effective under this Section 2.04 unless on the date~~ Loans of such ~~effectiveness, the conditions set forth~~ Series of one Type into Incremental Loans of such Series of another Type (as provided in Section ~~4.02 shall be satisfied. (e~~2.06) ~~Each~~ or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the ~~parties hereto hereby agrees that the Administrative Agent may,~~ same Type (as provided in ~~consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all~~ Section 2.06). Incremental Loans ~~(other than Other Loans), when originally made,~~ of any Series that are ~~included in each Borrowing of outstanding Loans on a pro rata basis. This~~ prepaid may not be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be reborrowed as ~~set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any~~ Incremental Loans ~~are not Other Loans,~~ of the ~~scheduled amortization payments under Section 2.09 required to be made after the making~~ same Series. Proceeds of ~~such~~ Incremental Loans shall be ~~ratably increased by~~ available for any use permitted under the ~~aggregate principal amount~~ applicable provisions of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationSection 6.09.

Appears in 1 contract

Samples: Credit Agreement (Lamar Advertising Co)

Incremental Loans. ~~(a) The~~ Any Borrower ~~may~~may at any time or from time to time after the Third Restatement Effective Date, by ~~written~~ notice from the Company to the Administrative Agent ~~from time to time~~and the Lenders, request ~~Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ (a) one or more additional tranches of term loans or additional Loans of the same Class of Term Loans as an existing Class of Term Loans (the “Incremental Term ~~Lenders~~ Loans”) or (~~which may include any existing Lender and which must be Eligible Assignees~~b) ~~willing to provide such Incremental Loan Commitments~~ one or more increases in ~~their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which shall be in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~“Revolving Commitment Increase”), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).provided that: (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) both at the ~~final maturity date~~ time of any ~~Other Loans shall be no earlier than the Maturity Date,~~ such request and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan ~~Assumption Agreement, this Agreement~~ is made (and after giving effect thereto) no Event of Default shall ~~be deemed amended~~ exist; provided that to the extent the proceeds of any such Incremental Term Loan are to be used to finance an Acquisition permitted hereunder, then this clause (~~but only~~ i) shall not be applicable so long as no Event of Default existed at the time the acquisition agreement relating to such Acquisition was entered into; (ii) immediately after giving effect to the ~~extent~~borrowing of such Incremental Term Loans or the establishment of such Revolving Commitment Increase (and (x) ~~necessary~~ assuming all Revolving Commitment Increases were fully drawn and (y) excluding the cash proceeds of the Incremental Term Loans and/or Revolving Commitment Increases from cash for purposes of calculating the Secured Debt Ratio), the Company shall be in compliance with the covenant set forth in Section 7.09; (iii) each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000; (iv) [Reserved]; (v) any Incremental Term Loans (1) shall not mature earlier than the Term A Loan Maturity Date, (2) shall not have a Weighted Average Life to ~~reflect~~ Maturity that is shorter than the ~~existence~~ then remaining Weighted Average Life to Maturity of then existing Term A Loans and (3) shall have the interest rates, upfront fees and OID for any Series of Incremental Term Loans as agreed between the applicable Borrower and the Incremental Lenders providing the applicable Series of Incremental Term Loans; (vi) in no event shall the Incremental Term Loans of any Series be entitled to participate on a greater than pro rata basis with the Term A Loans then outstanding in any mandatory prepayment pursuant to this Agreement; and (vii) except to the extent contemplated above or as set forth in this Agreement, all other terms of any Incremental Term Loans shall either be substantially the same as the terms of the Term A Loans (including mandatory prepayment requirements) or shall be reasonably satisfactory to the Administrative Agent. Each notice from the Company pursuant to this Section 2.01(c) shall set forth the requested amount and proposed terms of the relevant Incremental ~~Loan~~ Term Loans or Revolving Commitment ~~and the~~ Increases. Incremental Term Loans ~~evidenced thereby~~may be made, and Revolving Commitment Increases may be provided, by any existing Lender (but no existing Lender will have any obligation to make a portion of any Incremental Term Loan or any portion of any Revolving Commitment Increase and no Borrower shall have any obligation to offer any Series of Incremental Term Loans or any Revolving Commitment Increase to existing Lenders) or by any other bank or other financial institution (any such existing Lender or other bank or other financial institution being called an “Incremental Lender”), provided that the Administrative Agent and the ~~Borrower may revise~~ Issuing Lender, as applicable, shall have consented (not to be unreasonably withheld, conditioned or delayed) to such Incremental Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases to the extent any such consent would be required under Section 10.04(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Incremental Lender. Incremental Term Loans and Revolving Commitment Increases shall be established pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Company, any Subsidiary Borrower that will be a Borrower in respect of such Incremental Term Loans, each Incremental Lender and the Administrative Agent. The Incremental Amendment may, without the consent of any other party, effect such amendments to ~~evidence such amendments. (d) Notwithstanding~~ this Agreement and the ~~foregoing~~other Loan Documents as may be necessary or appropriate, ~~no Incremental Loan Commitment shall become effective under~~ in the reasonable opinion of the Administrative Agent to effect the provisions of this Section ~~2.04 unless~~ 2.01(c). In connection with any Incremental Amendment, the Obligors shall deliver such customary opinions and instruments as may be reasonably requested by the Administrative Agent for purposes of ensuring the enforceability of the Loan Documents after giving effect to such Incremental Amendment. Any Incremental Term Loans established pursuant to any Incremental Amendment shall constitute a separate “Series” of Incremental Term Loans hereunder. Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.01, (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, a portion of such Revolving Credit Lender’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 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 ~~effectiveness~~increase, ~~the conditions set forth in Section 4.02~~ there are any Revolving Credit Loans outstanding, each Revolving Commitment Increase Lender shall ~~be satisfied. (e) Each~~ purchase at par such portions of ~~the parties hereto hereby agrees that~~ each other Revolving Credit Lender’s Revolving Credit Loans as the Administrative Agent ~~may, in consultation with~~ may specify so that the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Revolving Credit Loans are ~~not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased~~ held by ~~the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders~~ each Revolving Credit Lender (including each Revolving Commitment Increase Lender) on a pro rata basis ~~to the extent necessary to avoid any reduction~~ in ~~the amortization payments to which the Lenders were entitled before such recalculation~~accordance with their respective Applicable Percentages.

Appears in 1 contract

Samples: Credit Agreement (Lamar Media Corp/De)

Incremental Loans. (a) ~~The~~ On or before the Term Loan Maturity Date or the Revolving Credit Maturity Date, as applicable, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from~~ elect to request the establishment of (i) incremental or additional term loan facilities (each, an “Incremental Term Facility”, and the commitments thereunder the “Incremental Term Loan Commitments”) or (ii) incremental or additional revolving credit facilities, which, for the avoidance of doubt, may include, at the option of Borrower, an increase in the size of the Revolving LC Sublimit on a dollar-for-dollar basis with the size of the Incremental Revolving Facility (subject to the consent of the Issuing Bank, in its sole and absolute discretion); provided that in no event shall the Revolving LC Sublimit exceed $80,000,000 at any time ~~to time~~(each, ~~request~~ an “Incremental Revolving Facility” and, together with the Incremental Term Facilities, the “Incremental Facilities”; and the commitments thereunder, the “Incremental Revolving Commitments” and, together with the Incremental Term Loan Commitments, collectively, the “Incremental Loan Commitments”). Subject to the terms and conditions set forth in this Section 2.22 and to the conditions precedent to each Credit Event set forth in Section 4.02 hereto, the Incremental Facilities shall be, in the case of any Incremental Term Facility, funded, or in the case of any Incremental Revolving Facility, available on the relevant Increased Amount Date; provided that (x) the aggregate amount of all Incremental Facilities shall not exceed the aggregate principal amount of $35,000,000, (y) each Incremental Term Facility shall be in an amount ~~not~~ equal to ~~exceed~~ at least $5,000,000 and (z) each Incremental Revolving Facility shall be in an amount equal to at least $5,000,000. Each such notice shall specify the ~~Incremental~~ date (each, an “Increased Amount at Date”) on which the ~~time such~~ Borrower proposes that the Incremental Loan Commitments ~~are established~~shall be effective, ~~from one~~ which shall be a date not less than five (5) Business Days after the date on which such notice is delivered to the Administrative Agent; provided that any Lender offered or ~~more~~ approached to provide all or a portion of any Incremental ~~Term Lenders (which~~ Loan Commitments may ~~include any existing Lender and which must be Eligible Assignees) willing~~ elect or decline, in its sole discretion, to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)Commitments. (b) ~~The Borrower may seek~~ Such Incremental Loan Commitments ~~from existing Lenders (each of which~~ shall ~~be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will~~ become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation effective as ~~the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, applicable Increased Amount Date; provided that (i) ~~the final maturity date~~ no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such Incremental Loan Commitments and any ~~Other Loans shall be no earlier than the Maturity Date, and~~ Borrowings on such date; (ii) ~~the average life~~ after giving effect to ~~maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield~~ such Incremental Loan Commitments and any Borrowings on such ~~Other Loans (as determined by the Administrative Agent to be equal to the sum~~ date each of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied; (iii) (A) the Total Leverage Ratio after giving effect to such Incremental Loan Commitments, any Borrowings and use of proceeds thereof on such date on a Pro Forma Basis shall not exceed a level 0.50:1.00 lower than the Total Leverage Ratio then required to be maintained under Section 6.15 and (B) the Loan Parties shall be in compliance on a Pro Forma Basis with the Financial Covenants; provided, that, for purposes of the calculations set forth in clauses (iii)(A)-(C), such calculations with respect to Incremental Revolving Credit Commitments shall assume a borrowing of the maximum amount of Loans available under such Incremental Revolving Credit Commitment and any other Incremental Revolving Credit Commitments previously made pursuant to this Section 2.22); (iv) the Incremental Loans shall share ratably in the Collateral; (v) except to the extent that the applicable Joinder Agreement otherwise provides, the Incremental Loans that are term loans (“Incremental Term Loans”) shall share ratably in any mandatory prepayments of the existing Term Loans; (vi) the maturity date of any Loan under such Incremental Facility shall not be earlier than the Maturity Date of the Term Loans, in the case of any Incremental Term Facility, or the Revolving Loans, in the case of any Incremental Revolving Facility; (vii) the Weighted Average Life to Maturity applicable to any Incremental Term Facility shall be equal to or greater than Weighted Average Life to Maturity of the existing Term Loan Facility; (viii) in the case of any increase in revolving loans (“Incremental Revolving Loans”) (A) such loans shall mature no earlier than, and require no scheduled amortization or mandatory commitment reduction prior to, the Revolving Credit Maturity Date, (B) all other terms (other than pricing, upfront fees and unused commitment fees) shall be substantially identical to the existing Revolving Credit Facility (in the reasonable discretion of the Administrative Agent) or otherwise reasonably acceptable to the Administrative Agent and (C) all other terms will be as agreed between the Borrower and the Incremental Revolving Lenders providing such Incremental Revolving Loans; (ix) in the case of any increase in term loans, all terms and documentation with respect to any Incremental Term Facility (A) shall be reasonably acceptable to the Administrative Agent, (B) will be as agreed between the Borrower and the Incremental Term Lenders providing such Incremental Loans and (C) other than in respect of the initial conditions to borrowing thereunder, shall not be more restrictive to the Parent and its Subsidiaries than the terms of the applicable existing Facility unless the Lenders under the applicable existing Facility also receive the benefit of the more restrictive terms (without any consent being required); (x) such Incremental Loans or Incremental Loan Commitments shall be effected pursuant to one or more joinder agreements executed and delivered by the Borrower, the Administrative Agent and one or more Incremental Lenders and setting forth the terms applicable to such Incremental Loans and Incremental Loan Commitments (each, a “Joinder Agreement”); (xi) the Incremental Loans shall rank pari passu in right of payment and security to the existing Facility; (xii) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the Administrative Agent in connection with any such transaction, including any supplements or amendments to the Collateral Documents providing for such Incremental Loans to be secured thereby and, if applicable, a Borrowing Request; and (xiii) if the interest rate applicable to the Incremental Loans under any Incremental Facility shall be higher than the corresponding interest rate on the applicable existing Facility by 0.25% or more, then the interest rate applicable to the applicable existing Facility shall be increased to a level that is not less than 0.25% below such Incremental Facility (in each case, calculated for both the Incremental Loans and the applicable existing Facility, in each case, inclusive of any original issue discount and upfront fees (with original issue discount being equated to interest based on an assumed four-year life to maturity with respect to the existing Facilities and, if the relevant Incremental Facility will have a maturity of less than four years, then based on the actual maturity for such Incremental Facility)); provided that in determining interest rates applicable to the existing Term Loans or Revolving Loans, as applicable, or the applicable Incremental Facility, (x) customary arrangement or commitment fees payable in connection with the existing Term Loans or Revolving Facility, as applicable, or to one or more arrangers (or their affiliates) of the applicable Incremental Facility shall be excluded and (y) if the LIBO Rate in respect of such Incremental Facility includes a floor greater than the floor applicable to the analogous existing Facility, such increased amount shall be equated to interest margin for purposes of determining any increase to the applicable interest margin under the analogous existing Facility. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any Incremental Loan Commitments shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in the applicable Joinder Agreement. (c) On any Increased Amount Date on which any Incremental Revolving Commitment or Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Revolving Commitment (each, an “Incremental Revolving Lender”) or an Incremental Term Loan Commitment (each, an “Incremental Term Lender” and together with the Incremental Revolving Lenders, collectively, the “Incremental Lenders”), to the extent not already a Lender, shall become a Lender hereunder with respect to such Incremental Loan Commitment; provided that any financial institution that becomes an Incremental Lender that is not already a Lender hereunder shall be reasonably satisfactory to the Administrative Agent and the Borrower and, with respect to any Incremental Revolving Facility, to the L/C Issuer. (d) The terms and provisions of the Incremental Loan Commitments shall be, except as set forth in the relevant Joinder Agreement and otherwise provided in this Section 2.22, identical to those of the applicable Loans and for purposes of this Agreement, any Incremental Loans or Incremental Loan Commitments shall be deemed to be Term Loans, Incremental Term Loans, Term Commitments, Incremental Term Loan Commitments, Revolving Loans, Incremental Revolving Loans, Revolving Credit Commitments or Incremental Revolving Credit Commitments, as applicable. Each Joinder Agreement 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, to effect the provisions of this Section 2.22. (e) ~~Each~~ This Section 2.22 shall supersede any provisions in Sections 2.13 and 9.08 to the contrary. Notwithstanding any other provision of any Loan Document, the ~~parties hereto hereby agrees that~~ Loan Documents may be amended by the Administrative Agent ~~may~~and the Loan Parties, ~~in consultation with the Borrower~~if necessary, ~~take any and all action~~ to provide for terms applicable to each Incremental Facility and/or Incremental Loan Commitment, as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationnecessary.

Appears in 1 contract

Samples: Credit Agreement (Rural/Metro Corp /De/)

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Fourth Restatement Effective Date, by written notice to the Administrative Agent ~~from time to time~~as provided below, request the establishment of one or more additional tranches of term loans hereunder (the “Incremental ~~Loan Commitments, in an~~ Loans”); provided that (i) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under Section 6.08(d)(i) (the “General Incremental Loans”) shall not exceed $300,000,000 and the aggregate amount of Incremental Loans to be used solely for the purposes permitted under Section 6.08(d)(ii) (the “Specified Incremental Loans”) shall not exceed ~~the Incremental Amount~~ $200,000,000; (ii) both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan, (A) no Default shall exist and (B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than 3.00 to 1.00; (iii) each Person which the Borrower shall request to make an Incremental Loan ~~Commitments are established~~shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iv) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (v) the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to Section 2.08(b)), ~~from one~~ and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in Section 2.09(b), in mandatory prepayments); (vi) the availability of the Specified Incremental Loans shall be reduced on a dollar-for-dollar basis by the outstanding amount of Indebtedness incurred pursuant to Section 7.01(k)in excess of $150,000,000; and (vii) except as otherwise provided in Section 6.09(a), the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or ~~more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Persons to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)Loans, (iix) the date on which such Incremental Loans shall be made, (y) the Incremental Loan ~~Commitments are requested to become effective~~ Maturity Date and the Incremental Loan Principal Payment Dates (~~which shall not be less than 10 Business Days nor more than 60 days after the date of~~ if any) for such ~~notice),~~ Incremental Loans and (~~iii~~z) ~~whether~~ the Applicable Margin that will apply to such Incremental ~~Loan Commitments are commitments~~ Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make ~~additional Loans or commitments to make term loans~~ such Incremental Loans, together with ~~terms different from~~ such other information reasonably requested by the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders Administrative Agent in connection therewith. ~~The Borrower and each~~ Amounts prepaid in respect of Incremental ~~Term~~ Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall ~~execute~~ be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and ~~deliver~~ delivery to the Administrative Agent of an Incremental Loan ~~Assumption Agreement and such other documentation as~~ Amendment (in form reasonable satisfactory to the Administrative ~~Agent shall reasonably specify to evidence~~ Agent) by such Person or Persons, the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms~~ Borrower and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other LoansAgent; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to that the effectiveness of ~~each~~ such Incremental Loan ~~Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement~~ Amendment shall be ~~deemed amended~~ subject to the ~~extent (but only to the extent) necessary to reflect the existence and terms~~ satisfaction of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date each of ~~such effectiveness,~~ the conditions set forth in this Section ~~4.02~~ and Sections 5.02 and 5.03 (it being understood that all references to “date of such Borrowing” or similar language in Section 5.02 shall be ~~satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary~~ deemed to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, refer to the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be ~~ratably increased by the aggregate principal amount~~ deemed to be a separate series (each a “Series”) of ~~such~~ Incremental Loans ~~and shall be further increased~~ for all ~~Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~purposes of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Loans. (aA) ~~The Borrower may~~At any time prior to the Revolving Loan Maturity Date, Borrowers may by written notice to Agent elect to request the ~~Administrative Agent from time to time, request Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ establishment of one or more increases in the Revolving Loan Commitment (an “Incremental ~~Term Lenders~~ Revolving Loan Commitment”) to make incremental revolving credit loans (any such increase, an “Incremental Revolving Loan Increase” or the “Incremental Loans”); provided that (1) the total aggregate amount for all such Incremental Revolving Loan Commitments shall not (as of any date of incurrence thereof) exceed $25,000,000.00, and (2) the total aggregate amount for the Incremental Revolving Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000.00 or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which Borrowers propose that any Incremental Revolving Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Agent. Borrowers may ~~include~~ invite any ~~existing~~ Lender, any Affiliate of any Lender ~~and which must be Eligible Assignees) willing~~ and/or any other Person reasonably satisfactory to Agent, to provide an Incremental Revolving Loan Commitment (any such Person, an “Incremental Lender”). Any Lender or any Incremental Lender offered or approached to provide all or a portion of any Incremental Revolving Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Revolving Loan ~~Commitments in their own discretion~~Commitment. ~~Such notice~~ Any Incremental Revolving Loan Commitment shall ~~set forth~~ become effective as of such Increased Amount Date; provided that: (1) no Default or Event of Default shall exist on such Increased Amount Date both before and after giving effect to (i) ~~the amount of the~~ any Incremental Revolving Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)Commitment, (ii) the ~~date on which such~~ making of any Incremental ~~Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice),~~ Loans pursuant thereto and (iii) ~~whether~~ any Permitted Acquisition consummated in connection therewith; (2) Agent and Lenders shall have received from each Borrower a Compliance Certificate demonstrating that Borrowers will be in compliance on a pro forma basis with the financial covenants set forth in Section 10.3 both before and after giving effect to (i) any Incremental Revolving Loan Commitment, (ii) the making of any Incremental Loans pursuant thereto and (iii) any Permitted Acquisition consummated in connection therewith; (3) the proceeds of any Incremental Loans shall be used as set forth in Section 2.6; (4) each Incremental Revolving Loan Commitment (and the Incremental Loans made thereunder) shall constitute Credit Agreement Obligations of Borrowers and shall be secured and guaranteed with the other Loans on a pari passu basis; (5) in the case of each Incremental Revolving Loan Increase (the terms of which shall be set forth in the relevant Lender Joinder Agreement): (a) such Incremental Revolving Loan ~~Commitments are commitments~~ Increase shall mature on the Revolving Loan Maturity Date, shall bear interest at the rate applicable to ~~make additional~~ the Revolving Loans ~~or commitments~~ and shall be subject to ~~make term loans with~~ the same terms ~~different from~~ and conditions as the ~~Loans (“Other~~ Revolving Credit Loans~~”).~~; (b) ~~The Borrower may seek Incremental~~ the outstanding Revolving Loans and Revolving Loan ~~Commitments from existing~~ Commitment Percentages of Swing Line Loans and Letters of Credit will be reallocated by Agent on the applicable Increased Amount Date among the Revolving Loan Lenders (~~each~~ including the Incremental Lenders providing such Incremental Revolving Loan Increase) in accordance with their revised Revolving Loan Commitment Percentages (and the Revolving Loan Lenders (including the Incremental Lenders providing such Incremental Revolving Loan Increase) agree to make all payments and adjustments necessary to effect such reallocation and Borrowers shall pay any and all costs required pursuant to Section 6.13 in connection with such reallocation as if such reallocation were a repayment); and (c) except as provided above, all of ~~which~~ the other terms and conditions applicable to such Incremental Revolving Loan Increase shall, except to the extent otherwise provided in this Section 2.7, be identical to the terms and conditions applicable to the Revolving Loan; (6) any Incremental Lender with an Incremental Revolving Loan Increase shall be entitled to ~~agree or decline to participate in its sole discretion)~~ the same voting rights as the existing Revolving Loan Lenders under the Revolving Loans and ~~additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders~~ any Loans made in connection ~~therewith. The Borrower and~~ with each Incremental ~~Term~~ Revolving Loan Increase shall receive proceeds of prepayments on the same basis as the other Revolving Loans made hereunder; (7) such Incremental Revolving Loan Commitments shall be effected pursuant to one or more Lender ~~shall execute~~ Joinder Agreements executed and ~~deliver~~ delivered by Borrowers, Agent and the applicable Incremental Lenders (which Lender Joinder Agreement may, without the consent of any other Lenders, effect such amendments to ~~the Administrative Agent an Incremental Loan Assumption~~ this Agreement and ~~such~~ the other ~~documentation~~ Loan Documents as may be necessary or appropriate, in the ~~Administrative Agent shall reasonably specify~~ opinion of Agent, to ~~evidence~~ effect the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms and~~ provisions of this Section 2.7); and (8) Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of Each Borrower Party authorizing such Incremental ~~Loans~~ Loan) reasonably requested by Agent in connection with any such transaction. (~~excluding amortization, maturity, pricing, fees and rate floors~~B) The Incremental Lenders shall be ~~identical to those of the Loans except as otherwise set forth herein. Without the prior written consent~~ included in any determination of the Required Lenders or Required Revolving Credit Lenders, ~~(i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date~~as applicable, and ~~(ii)~~ the ~~average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans~~Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (cC) ~~if the initial yield~~ On any Increased Amount Date on ~~such Other Loans (as determined by the Administrative Agent to be equal~~ which any Incremental Revolving Loan Increase becomes effective, subject to the ~~sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans~~ foregoing terms and ~~(y) if such Other Loans are initially made at~~ conditions, each Incremental Lender with an Incremental Revolving Loan Commitment shall become a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, Revolving Credit Lender hereunder with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Revolving Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendmentsCommitment. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (KMG Chemicals Inc)

Incremental Loans. ~~(a) The~~ At any time prior to the Maturity Date, the Borrower may, by ~~written~~ notice to the Administrative Agent ~~from time~~ (which shall promptly deliver a copy to ~~time~~each of the Lenders), request the addition to this Agreement of a new tranche of term loans, or an incremental revolving credit facility or any combination thereof (the "Incremental ~~Loan Commitments~~Facilities"); provided, ~~in an amount not to exceed the Incremental Amount~~ however, that both (x) at the time of any such request and (y) upon the effectiveness of any such Incremental ~~Loan Commitments are established~~Facility, ~~from one or more~~ no Default shall exist and the Borrower shall be in compliance with Sections 6.12, 6.13 and 6.14 (calculated, in the case of clause (y), on a pro forma basis to give effect to any borrowing of term loans under the Incremental ~~Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such~~ Facility). The Incremental ~~Loan Commitments in their own discretion. Such notice~~ Facilities shall ~~set forth~~ (i) ~~the amount of the Incremental Loan Commitments being requested (which shall~~ be in ~~minimum increments~~ an aggregate principal amount not in excess of $~~1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)~~150,000,000, (ii) rank pari passu in right of payment and of security with the ~~date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice)~~other Loans, ~~and~~ (iii) ~~whether~~ if such Incremental ~~Loan Commitments are commitments to make additional Loans or commitments to make~~ Facility is a term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate loan facility, amortize in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver a manner acceptable to the ~~Administrative Agent~~ Agents, and in any event have an ~~Incremental Loan Assumption Agreement~~ average weighted life equal to or longer than the Term Loans and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be mature no earlier than the Maturity Date, ~~and~~ (iiiv) bear interest at the ~~average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (~~market interest rate, as determined at the time such Incremental Facility becomes effective, (v) have such other pricing as may be agreed by the Borrower and the Administrative Agent to and (vi) otherwise be ~~equal~~ treated hereunder no more favorably than the Term Loans, in the case of an Incremental Facility involving term loans, or the Revolving Loans, in the case of an Incremental Facility involving revolving loans; provided, that the terms and provisions applicable to the ~~sum~~ Incremental Facilities may provide for additional or different financial or other covenants applicable only during periods after the Maturity Date. The proceeds of ~~(x)~~ the ~~margin above~~ Incremental Facilities shall be used solely for the ~~Adjusted LIBO Rate on such Other Loans~~ purposes set forth in Section 5.10. Such notice shall set forth the requested amount and ~~(y) if such Other Loans are initially made at~~ class of Incremental Facilities, and shall offer each Lender the opportunity to offer a ~~discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so~~ commitment (the ~~amount of such discount or fee, expressed as~~ "Incremental Commitment") to provide a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the ~~Yield Differential is attributable~~ Incremental Facility by giving written notice of such offered commitment to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower within a time period (the "Offer Period") to be specified in the Borrower's notice; provided, however, that no existing Lender will be obligated to subscribe for any portion of such commitments. In the event that, at the expiration of the Offer Period, Lenders shall have provided commitments in an aggregate amount less than the total amount of the Incremental Facility initially requested by the Borrower, the Borrower may ~~revise~~ request that Incremental Facility commitments be made in a lesser amount equal to such commitments and/or shall have the right to arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an "Additional Lender") to extend commitments to provide a portion of the Incremental Facility in an aggregate amount equal to the unsubscribed amount of the initial request; provided that each Additional Lender shall be subject to the approval of the Administrative Agent (such consent not to be unreasonably withheld); and provided further that the Additional Lenders shall be offered the opportunity to provide the Incremental Facility only on terms previously offered to the existing Lenders pursuant to the immediately preceding sentence. Commitments in respect of Incremental Facilities will become Commitments under this Agreement pursuant to ~~evidence~~ an amendment to this Agreement (such ~~amendments. (d~~an amendment, an "Incremental Facility Amendment") ~~Notwithstanding~~ executed by each of the ~~foregoing~~Borrower and each Subsidiary Loan Party, no each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The effectiveness of any Incremental ~~Loan Commitment~~ Facility Amendment shall ~~become effective under this Section 2.04 unless~~ be subject to the satisfaction on the date thereof of ~~such effectiveness,~~ each of the conditions set forth in Section ~~4.02 shall be satisfied~~4.02. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Rite Aid Corp)

Incremental Loans. (a) ~~The~~ At any time after the Closing Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the Revolving Credit Commitments, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed $50,000,000 and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, ~~from one~~ if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days (or ~~more~~ such shorter period as may be agreed to by the Administrative Agent) after the date on which such notice is delivered to Administrative Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide a Incremental ~~Term Lenders~~ Loan Commitment (~~which~~ any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may ~~include any existing Lender and which must be Eligible Assignees) willing~~ elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such ~~effectiveness~~Increased Amount Date; provided that: (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the ~~conditions~~ making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Section ~~4.02~~ 9.15 based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VII shall be ~~satisfied.~~true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (eD) ~~Each~~ the proceeds of any Incremental Loans shall be used for general corporate purposes of the ~~parties hereto hereby agrees~~ Borrower and its Subsidiaries (including Permitted Acquisitions); provided that with respect to any Incremental Loans or Incremental Loan Commitments incurred prior to the earlier of (1) the Delayed Draw Expiration Date and (2) the date that Holdings irrevocably notifies the Administrative Agent ~~may~~in writing that it does not intend to make any further Shareholder Distributions, ~~in consultation~~ the proceeds of such Incremental Loans or Incremental Loan Commitments shall be used solely to finance Permitted Acquisitions; (E) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the ~~Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (~~other ~~than Other Loans), when originally made, are included in each Borrowing~~ Extensions of ~~outstanding Loans~~ Credit on a ~~pro rata~~ pari passu basis~~. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ ; (F) (1) in the ~~date~~ case of each Incremental ~~Loan, or by allocating a portion~~ Term Loan (the terms of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence~~ which shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the ~~applicable Incremental Loan Assumption~~ relevant Lender Joinder Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.):

Appears in 1 contract

Samples: Credit Agreement (Media General Inc)

Appears in 1 contract

Samples: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount at (in the ~~time~~ case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available). The Administrative Agent shall promptly deliver a copy of such ~~Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ notice to ~~provide such Incremental Loan Commitments in their own discretion~~each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion), or such lesser amount equal to the ~~remaining~~ Incremental Loan Amount ~~or in each case~~ at such ~~lesser amount approved by the Administrative Agent~~time), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days ~~nor more than 60 days~~ (or such shorter period as agreed by the Administrative Agent) after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make ~~term loans~~ Loans with terms different from ~~the~~ such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that (i) the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund), (ii) with respect to Incremental Term Loan Commitments, any Affiliated Lender providing an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Incremental Revolving Credit Commitments. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The ~~terms~~ Other Loans and ~~provisions~~ any Incremental Revolving Credit Commitments providing for Incremental Revolving Credit Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall have fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be secured by the Collateral on a pari passu basis and (iii) may participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayment of the ~~Incremental~~ other Term Loans (~~excluding amortization, maturity, pricing, fees and rate floors~~in the case of Incremental Term Loans) ~~shall be identical~~ or Revolving Credit Loans (in the case of Incremental Revolving Credit Loans and/or Incremental Revolving Credit Loan Commitments) existing on the Incremental Facility Closing Date (but not greater than pro rata basis (except for prepayments in connection with a refinancing or pursuant to ~~those~~ Section 2.13(h) or any prepayments of ~~the~~ any Class of Loans ~~except as otherwise set forth herein~~or Commitments with an earlier Maturity Date than any other Class of Loans or Commitments)). Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (iA) the final maturity date of any Other Loans that are Term Loans (the “Other Term Loans”) shall be no earlier than the Initial Term Loan Maturity Date, ~~and~~ (iiB) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Loan Maturity Date, (C) the average life to maturity of the Other Term Loans shall be no shorter than the remaining average life to maturity of the Initial Term Loans. , (cD) if the ~~initial yield~~ All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; provided, however, that the All-In Yield applicable to such Other Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans made on the Funding Date plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor) with respect to such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) above, and (E) the other terms and documentation in respect of such Other Loans (~~as determined by~~ except for covenants or other provisions (i) conformed (or added) in the ~~Administrative Agent to be equal~~ Loan Documents pursuant to the ~~sum~~ related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the ~~margin above~~ case of any Class of Incremental Term Loans and Incremental Term Loan Commitments, “soft-call” provisions may be added solely for the ~~Adjusted LIBO Rate on such Other Loans~~ benefit of the Term Lenders and (y) ~~if such Other~~ in the case of any Class of Incremental Revolving Loans ~~are initially made at a discount or~~ and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the ~~Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage~~ benefit of the ~~Other Loans, being referred~~ Revolving Credit Lenders or (ii) applicable only to ~~herein~~ periods after the Latest Maturity Date as of the Incremental Facility Closing Date (collectively the “~~OID~~Additional Covenants”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent ~~any portion of~~ not consistent with the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans~~Term Facilities or the Revolving Credit Facilities, ~~such floor~~ as applicable, shall ~~only~~ be ~~included in the calculation of the Yield Differential~~ reasonably satisfactory to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced ~~thereby~~thereby including the Additional Covenants, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and Other Loans shall have the same guarantees as, and be ~~further increased for all Lenders~~ secured on a ~~pro rata~~ pari passu basis to with, the ~~extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.~~Loans. 66

Appears in 1 contract

Samples: Credit Agreement (CSC Holdings LLC)

Incremental Loans. 4159-0000-0000.0 (a) ~~The~~ Other than during the Covenant Relief Period, from time to time during the Availability Period, subject to the terms and conditions set forth herein, the Borrower may, by ~~written~~ notice to the Administrative Agent ~~from time~~ (whereupon the Administrative Agent shall promptly deliver a copy to ~~time~~each of the Lenders), elect to request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the Revolving Loan Commitments (any such increase, an “Incremental Revolving Loan Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving loans under the Revolving Loan Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Loan Increase” and, together with the Incremental ~~Amount~~ Term Loans, the “Incremental Loans”); provided that (i) the Borrower may not request any Incremental Loan Commitments or Incremental Loans during the Covenant Relief Period and (ii) at the time of each such request and upon the effectiveness of each Incremental Amendment, (A) no Default has occurred and is continuing or shall result therefrom and (B) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clause (A) above. Notwithstanding anything to the contrary herein, (1) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established, from one or more Incremental Term Lenders~~ shall not (~~which may include~~ as of any ~~existing Lender~~ date of incurrence thereof) exceed $100,000,000 and ~~which must be Eligible Assignees~~(2) ~~willing to provide such~~ the total aggregate amount for each Incremental Loan ~~Commitments in their own discretion. Such notice shall set forth~~ Commitment (~~i) the amount of~~ and the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (iiLoans made thereunder) ~~the date on which such Incremental Loan Commitments are requested to become effective (which~~ shall not be less than ~~10 Business Days nor more than 60 days after~~ a minimum principal amount of $10,000,000 or, if less, the ~~date of such notice), and~~ remaining amount permitted pursuant to the foregoing clause (~~iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”~~1). (b) ~~The~~ Each notice from the Borrower ~~may seek~~ pursuant to this Section 2.21 shall set forth the requested amount of the relevant Incremental Loan ~~Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and~~ Commitment. Any additional ~~banks~~bank, financial ~~institutions and~~ institution, existing Lender or other ~~institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver~~ Person that elects to ~~the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the~~ provide a portion of any Incremental Loan Commitment ~~of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors)~~ shall be ~~identical~~ reasonably satisfactory to ~~those of~~ the ~~Loans except as otherwise set forth herein~~Borrower, the Administrative Agent, and with respect to Incremental Revolving Loan Commitments, each Swingline Lender and each Issuing Bank (any such bank, financial institution, existing Lender or other Person being called an “Incremental Lender”) and, if not already a Lender, shall become a Lender under this Agreement pursuant to an Incremental Amendment. ~~Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans~~ Each Incremental Loan Commitment shall be ~~no earlier than~~ effected by an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the ~~Maturity Date~~other Loan Documents, executed by STX, the Borrower, such Incremental Lender and ~~(ii)~~ the ~~average life to maturity of the Other Loans~~ Administrative Agent. No Lender shall be ~~no shorter than the average life~~ obligated to ~~maturity of the Loans~~provide any Incremental Loan Commitment, unless it so agrees. (c) if Commitments in respect of any (i) Incremental Revolving Loan Commitment shall become Revolving Commitments (or in the ~~initial yield on~~ case of any Incremental Revolving Loan Commitment to be provided by an existing Lender, an increase in such ~~Other Loans~~ Lender’s Revolving Commitment) under this Agreement and (ii) Incremental Term Loan Commitment shall be a Term Loan Commitment (and a separate facility under this Agreement). An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as ~~determined by~~ may be necessary or appropriate, in the opinion of the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided thatAgent, to effect the ~~extent any portion~~ provisions of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingthis Section 2.21. The ~~Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the~~ effectiveness of any Incremental ~~Loan Assumption Agreement~~Amendment shall, ~~this Agreement shall be deemed amended~~ unless otherwise agreed to ~~the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and~~ by the Administrative Agent and the ~~Borrower may revise this Agreement~~ Incremental Lenders, be subject to ~~evidence such amendments. (d) Notwithstanding~~ the ~~foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless~~ satisfaction on the date thereof (each, an “Incremental Closing Date”) of ~~such effectiveness,~~ each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be ~~satisfied~~deemed to refer to the Incremental Closing Date). The proceeds of any Incremental Loans made pursuant to Incremental Loan Commitments will be 4159-0000-0000.0 used only for working capital and other general corporate purposes of the Borrower and its subsidiaries. (ed) ~~Each~~ Upon each Incremental Revolving Loan Increase pursuant to this Section 2.21, (i) each Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Incremental Lender, and each Incremental Lender will automatically and without further act be deemed to have assumed, a portion of such Lendxx’x xarticipations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to such Incremental Revolving Loan Increase and each such deemed assignment and assumption of participations, the percentage of the ~~parties hereto hereby agrees that the Administrative Agent may~~aggregate outstanding (A) participations hereunder in Letters of Credit and (B) participations hereunder in Swingline Loans held by each Lender (including each Incremental Lender) will equal such Lender’s Applicable Percentage and (ii) if, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of ~~each~~ such Incremental ~~Loan~~Revolving Loan Increase, ~~or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency~~ there are any Revolving Loans ~~to ABR~~ outstanding, such Revolving Loans ~~required by the preceding sentence~~ shall be ~~subject to~~ prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such Incremental Revolving Loan Increase), 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 2.15. ~~If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period~~ The Administrative Agent and the ~~other economic consequences thereof~~ Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall ~~be as set forth in the applicable Incremental Loan Assumption Agreement. In addition,~~ not apply to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis transactions effected pursuant to the ~~extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~immediately preceding sentence.

Appears in 1 contract

Samples: Credit Agreement (Seagate Technology Holdings PLC)

Incremental Loans. (a) The ~~Borrower~~ Borrowers may, by written notice delivered to the Administrative Agent from time to ~~time~~time on one or more occasions after the Closing Date, request Incremental ~~Loan~~ Commitments in an aggregate principal amount for all such Incremental Commitments of up to (i) $10,000,000 (which shall not be reduced by any amount incurred in reliance on clause (ii) below) plus (ii) an unlimited amount, so long as in the case of this clause (ii), after giving effect to such Incremental Loans (and assuming in the case of any Incremental Revolving Credit Commitments, ~~in an amount not to exceed the Incremental Amount at the time~~ that such Incremental ~~Loan Commitments are established~~Revolving Loans have been fully drawn) and the use of proceeds thereof, ~~from one~~ the Total Net Leverage Ratio calculated on a Pro Forma Basis shall be equal to or ~~more Incremental Term Lenders~~ less than 4.00 to 1.00 (~~which may include any existing Lender and which must be Eligible Assignees) willing to provide such~~ the “Incremental Loan ~~Commitments in their own discretion~~Amount”); provided that the Borrowers may elect to use this clause (ii) prior to clause (i) above, and if both clause (i) above and this clause (ii) are available and the Borrowers do not make an election, the Borrowers will be deemed to have elected this clause (ii). Such notice shall set forth (ix) the amount of the Incremental ~~Loan~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (iiy) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 5 Business Days nor more than 60 days after the date of such notice), unless the Administrative Agent shall otherwise agree and (~~iii~~z) whether such Incremental ~~Loan~~ Commitments are commitments to make additional Term Loans, additional Revolving Loans or ~~commitments to make~~ term loans or revolving loans with terms different from the Loans (loans with different terms from the Loans being referred to herein as “~~Other~~ Specified Incremental Loans” and such commitments, “Specified Incremental Loan Commitments”), as applicable. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower Borrowers and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental ~~Loan~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental ~~Loan~~ Commitment of each Incremental ~~Term~~ Lender. ~~The~~ Each Incremental Assumption Agreement shall specify the terms ~~and provisions~~ of ~~the~~ any Incremental Loans to be made thereunder; provided that (~~excluding amortization, maturity, pricing, fees and rate floors~~i) ~~shall be identical to those of the Loans except as otherwise set forth herein. Without~~ without the prior written consent of the Required Lenders, , (iA) the final maturity date of any ~~Other~~ Incremental Term Loans shall be no earlier than the Maturity ~~Date,~~ Date and ~~(ii)~~ the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Term Loans shall be no shorter than the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the Term Loans.; (cB) the final maturity date of any Incremental Revolving Loans shall be no earlier than a date to be determined by the Borrowers and the Incremental Lenders (but not later than five years after the Closing Date) (such date, the “Incremental Revolving Credit Maturity Date”); (C) the interest rate margins applicable to any Incremental Term Loan or any Incremental Revolving Loan will be determined by the Borrowers and the applicable Incremental Lenders; provided that (I) solely for the benefit of the Term Loans incurred on the Closing Date and the Additional U.S. Term Loans incurred on the First Restatement Date, if the initial yield on such ~~Other Loans~~ Incremental Loan (as reasonably determined by the Administrative Agent in consultation with the Borrowers to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such ~~Other~~ Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Loans on the date such Loans are made would exceed the LIBO Rate for a three-month Interest Period commencing on such date) and (y) if such ~~Other~~ Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “with OID”), the amount of such OID divided by the lesser of (1A) the average life to maturity (expressed in years) of such ~~Other~~ Loans and (2B) four) exceeds ~~the applicable margin then in effect for Eurocurrency Loans~~ by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”~~), then~~ ) the ~~applicable margin~~ sum of (A) the Applicable Rate then in effect for Eurodollar Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Eurodollar Term Loans, on the date such Incremental Loans are made would exceed the Adjusted LIBO Rate for a three-month Interest Period commencing on such date) (but excluding any customary arrangement, underwriting, structuring or similar fees in connection therewith that are not paid to all of the Lenders providing such Incremental Loans), and (B) the amount of the OID initially paid in respect of the Term Loans, divided by four, then the Applicable Rate then in effect for the Term Loans shall automatically be increased by the Incremental Yield Differential, effective upon the making of the ~~Other~~ Incremental Loans~~; provided that~~, and (II) solely for the benefit of the Incremental Revolving Loans incurred under the Incremental Revolving Credit Commitments in effect on the Second Restatement Date, if the initial yield on such additional Incremental Revolving Loans (if documented as a separate tranche) (as reasonably determined by the Administrative Agent in consultation with the Borrowers to be equal to the ~~extent any portion~~ sum of (x) the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of margin above the Adjusted LIBO Rate ~~in effect for an Interest Period of three months’ duration at~~ on such ~~time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding~~ additional Incremental Revolving Loans (which shall be increased ~~to an~~ by the amount ~~not to exceed the~~ that any “LIBOR floor” applicable to such ~~Other~~ additional Incremental Revolving Loans ~~prior~~ on the date such additional Incremental Revolving Loans are made would exceed the LIBO Rate for a three-month Interest Period commencing on such date) and (y) if such additional Incremental Revolving Loans are initially made with OID, the amount of such OID divided by the lesser of (A) the average life to maturity (expressed in years) of such additional Incremental Revolving Loans and (B) four) exceeds by more than 50 basis points, the sum of (A) the Applicable Rate then in effect for the existing Eurodollar Revolving Loans (which shall be increased by the amount that any ~~increase in the applicable margin~~ “LIBOR floor” applicable to such Eurodollar Revolving Loans incurred under the Incremental Revolving Credit Commitments in effect on the Second Restatement Date on the date such additional Incremental Revolving Loans are made would exceed the Adjusted LIBO Rate for a three-month Interest Period commencing on such date) (but excluding any customary arrangement, underwriting, structuring or similar fees in connection therewith that are not paid to all of the Lenders providing such additional Incremental Revolving Loans), and (B) the amount of the OID initially paid in respect of the existing Revolving Loans, divided by four, then ~~outstanding~~the Applicable Rate then in effect for the existing Incremental Revolving Loans incurred under the Incremental Revolving Credit Commitments in effect on the Second Restatement Date shall automatically be increased by the Incremental Yield Differential, effective upon the making of the additional Incremental Revolving Loans; (D) all representations and warranties set forth in Article III and in each other Loan Document shall be true, correct and complete in all material respects on and as of the date of effectiveness of any Incremental Assumption Agreement and with the same effect as though made on and as of such date; provided that to the extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true, correct and complete in all respects as of such earlier date; provided, further that any representation and warranty that is qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true, correct and complete in all respects on and as of the date of effectiveness of any Incremental Assumption Agreement or on such earlier date, as the case may be; and provided further that if the proceeds of Incremental Loans are to be used to finance a Permitted Acquisition, in lieu of the condition set forth in this clause (D) only “specified representations” pursuant to customary “SunGard” or “certain funds” conditionality (conformed as necessary for such Permitted Acquisition) shall be required to be true and correct in all material respects; (E) no Default or Event of Default shall exist or would exist immediately after giving effect thereto; provided that if the proceeds of Incremental Loans are to be used to finance a Permitted Acquisition, in lieu of the condition set forth in this clause (E), no Incremental Loan may be made if any Event of Default under Sections 8.01(b), (c), (g) or (h) exists or would result therefrom; (F) the Incremental Loans shall have the same guarantees as, and be secured on a pari passu basis by the same Collateral securing the existing Loans, and; (G) all fees and expenses owing in respect of such increase to the Administrative Agent and the Lenders shall have been paid; and (ii) all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Term Loans or Revolving Loans, as applicable (except those terms forth in clauses (i)(A), (B), (C) and (F) above), shall be reasonably satisfactory to the Administrative Agent; provided that, for the avoidance of doubt, synthetic letter of credit facilities shall be permitted to be requested as Incremental Term Loan Commitments. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan~~ Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental ~~Loan~~ Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental ~~Loan Commitment~~ Commitments and the Incremental Loans evidenced thereby~~, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments~~. (dc) Notwithstanding the foregoing, no Incremental ~~Loan~~ Commitment shall become effective under this Section ~~2.04~~ 2.24 unless the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the ~~date~~ Closing Date under Section 4.02, other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of ~~such effectiveness,~~ opinion that are reasonably satisfactory to the ~~conditions set forth in Section 4.02 shall be satisfied~~Administrative Agent. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the ~~Borrower~~Borrowers, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than ~~Other~~ Specified Incremental Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans or Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental ~~Loan~~ Assumption Agreement. In addition, to the extent any Incremental Term Loans are ~~not Other~~ Term Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) or (ii), as the case may be, required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans. (e) The Borrowers may seek commitments in respect of Incremental Loans ~~and~~ from existing Lenders (each of which shall be ~~further increased~~ entitled to agree or decline to participate in its sole discretion) and, in consultation with the Administrative Agent, additional banks, financial institutions and other institutional lenders who will become Lenders in connection therewith; provided that the Administrative Agent shall have consent rights (not to be unreasonably withheld or delayed) with respect to such additional Lenders, if such consent would be required pursuant to Section 9.04 for ~~all Lenders on a pro rata basis~~ an assignment of loans or commitments, as applicable, to ~~the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before~~ such ~~recalculation~~additional Lender.

Appears in 1 contract

Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Booz Allen Hamilton Holding Corp)

Incremental Loans. (a) ~~The~~ Borrower may, by written notice to ~~the Administrative~~ Agent from time to time, request an increase in the principal amount of the Loans, or request one or more additional tranches of Loans (the “Incremental ~~Loan Commitments, in~~ Loans”); provided that the aggregate principal amount of Incremental Loans incurred under this Section 2.15 after the Amendment No. 8 Closing Date shall not exceed an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount~~ sum of (a) (I) $100 million, plus (II) $150 million minus the aggregate principal amount of Indebtedness outstanding and secured at the time pursuant to clause (6)(B)(y)(i) of the definition of “Permitted Liens”, plus (b) an additional amount so long as, after giving effect to the incurrence of such additional amount, (i) Borrower could incur $1.00 of additional Indebtedness under Section 7.1(a) and (ii) the pro forma Consolidated Secured Net Leverage Ratio of Borrower (calculated without netting the cash proceeds of such Incremental ~~Loan Commitments are established, from one or more~~ Loans) does not exceed 3.00:1.00 (the “Ratio Incremental ~~Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion~~Basket”). Such notice shall set forth (ix) the amount of the Incremental ~~Loan~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $~~5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~5,000,000), (iiy) the date on which such Incremental ~~Loan~~ Commitments are requested to become effective (which shall not be less than 10 ten (10) Business Days nor more than 60 sixty (60) days after the date of such ~~notice~~notice (or such longer or shorter periods as Agent shall agree), ) and (~~iii~~z) whether such Incremental ~~Loan Commitments~~ Loans are ~~commitments~~ intended to ~~make additional~~ be increases to the existing Loans or ~~commitments~~ are intended to ~~make term loans~~ be a new tranche of Loans with terms different from the ~~Loans (“Other~~ Loans~~”). (b) The~~ . Borrower may seek Incremental ~~Loan Commitments~~ Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender~~ or any Additional Lender. (b) It shall ~~execute and deliver~~ be a condition precedent to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions incurrence of the Incremental Loans that (~~excluding amortization~~i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after the incurrence of such the Incremental Loan, ~~maturity, pricing, fees~~ (ii) the representations and ~~rate floors)~~ warranties set forth in Section 4 and in each other Loan Document shall be ~~identical to those~~ true and correct in all material respects on and as of the date the Incremental Loans are made, except to the extent that such representations or warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as ~~otherwise~~ of such earlier date and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.15(c); provided that the foregoing clauses (i) and (ii) will not be required to apply to the extent that the proceeds of the Incremental Loans are being used to finance a Limited Condition Acquisition. (c) The terms of the Incremental Loans shall be determined by Borrower and the Persons providing the Incremental Loans (each, an “Incremental Lender”) and set forth ~~herein. Without the prior written consent of the Required Lenders,~~ in an Incremental Amendment; provided that (i) the final maturity date of any ~~Other~~ Incremental Loans shall be no earlier than the Latest Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of any then-existing Loans, (iii) the Incremental Loans will rank pari passu in right of payment and with respect to security with the Loans, (iv) none of the ~~Loans.~~ borrower or guarantors with respect to the Incremental Loans shall be a Person that is not a Credit Party and the Incremental Loans shall not be secured by assets that do not constitute Collateral, (cv) with respect to any Incremental Loans incurred pursuant to clause (a) of this Section 2.15, (x) if the ~~initial yield~~ All-in Yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any ~~Subsidiary for doing so (the amount~~ tranche of such ~~discount or fee, expressed as a percentage~~ Incremental Loans incurred within six (6) months of the ~~Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four)~~ Amendment No. 8 Closing Date exceeds the ~~applicable margin then~~ initial All-in ~~effect~~ Yield for ~~Eurocurrency~~ the Term B-2 Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term B-2 Loan Yield Differential”) or (y) if the All-in Yield on any tranche of such Incremental Loans incurred within six (6) months of the Amendment No. 9 Closing Date exceeds the initial All-in Yield for the Term B-3 Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term B-3 Loan Yield Differential”), then the ~~applicable margin then in effect~~ Applicable Margin for such Term B-2 Loans or Term B-3 Loans, as applicable, shall automatically be increased by the Term B-2 Loan Yield ~~Differential~~Differential or Term B-3 Loan Yield Differential applicable to such Term B-2 Loans or Term B-3 Loans, as applicable, effective upon the making of the ~~Other~~ Incremental Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on such Term B-2 Loans or Term B-3 Loans~~; provided that~~, as applicable, as necessary to ensure the Incremental Loans are “fungible” with such Term B-2 Loans) or Term B-3 Loans, as applicable), (vi) the Incremental Loans may share ratably or less than ratably (but not more than ratably) in any mandatory prepayments hereunder and (vii) to the extent ~~any portion~~ the terms of the ~~Yield Differential is attributable~~ Incremental Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above), such terms shall be reasonably satisfactory to ~~a higher “LIBOR floor” being applicable to such Other~~ Agent. (d) In connection with any Incremental Loans, Borrower, Agent and each applicable Incremental Lender shall execute and deliver to Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (an “Incremental Amendment”) and such ~~floor~~ other documentation as Agent shall ~~only be included in~~ reasonably specify to evidence the ~~calculation~~ Incremental Loans of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingeach Incremental Lender. ~~The Administrative~~ Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan Assumption Agreement~~Amendment. ~~Each of the parties hereto hereby agrees that~~Any Incremental Amendment may, ~~upon the effectiveness~~ without consent of any ~~Incremental Loan Assumption Agreement~~other Lender, effect such amendments to this Agreement ~~shall~~ and the other Loan Documents as may be ~~deemed amended~~ necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effect the ~~extent (but only to the extent)~~ provisions of this Section 2.15, including any amendments necessary to ~~reflect the existence and terms of the Incremental Loan Commitment and~~ establish the Incremental Loans ~~evidenced thereby,~~ as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the ~~Administrative~~ reasonable opinion of Agent and Borrower in connection with the ~~Borrower may revise this Agreement to evidence~~ establishment of such ~~amendments. (d) Notwithstanding the foregoing~~new class or tranche, ~~no Incremental Loan Commitment shall become effective under~~ in each case on terms consistent with this Section ~~2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied~~2.15. (e) ~~Each of the parties hereto hereby agrees that the Administrative Agent may,~~ This Section 2.15 shall supersede any provision in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, Section 2.9 or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation12.2.

Appears in 1 contract

Samples: Incremental Amendment to Credit Agreement (XPO, Inc.)

Incremental Loans. (a) The Borrower ~~may,~~ may from time to time after the Effective Date by written notice to the Administrative Agent ~~from time~~ elect to ~~time,~~ request ~~Incremental~~ the establishment of one or more new term loan or revolving commitments (the “New Loan Commitments”) hereunder, in an aggregate amount for all such New Loan Commitments not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth sum of (i) $400,000,000 (the “Cash-Capped Incremental Facility”) plus (ii) an unlimited amount that could be incurred while at the same time remaining in compliance with the Senior Incurrence Test on a pro forma basis (the “Senior Incurrence Incremental Facility”) and (iii) an amount equal to all voluntary prepayments and repurchases of Term Loans and Revolving Loans (to the extent accompanied by a permanent reduction in commitments therefor) made after the Effective Date (other than (x) any prepayments required as a condition precedent to the Extension Amendment and (ii) any prepayment, repurchase, or commitment reduction financed with the proceeds of long term indebtedness) (the “Prepay Incremental Facility”, and together with the Cash-Capped Incremental Facility and the Senior Incurrence Incremental Facility, the “Incremental Amount”), provided that any New Loan Commitments established pursuant to this Section 2.25(a) (i) will count towards the Prepay Incremental Facility prior to the Senior Incurrence Incremental Facility (to the extent permitted by the pro forma calculation of the Senior Incurrence Test required prior to the incurrence of such Senior Incurrence Incremental Facility) prior to reducing the maximum amount under the Cash-Capped Incremental Facility and (ii) may be incurred under any portion of the Incremental Amount, and proceeds from any such incurrence may be utilized in a single transaction by first calculating the incurrence under the Prepay Incremental Facility, then calculating incurrence under the Senior Incurrence Incremental Facility (without inclusion of any amounts utilized pursuant to the Cash-Capped Incremental Facility) and then calculating the incurrence under the Cash-Capped Incremental Facility. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000~~ date not less than 5 Business Days (or ~~equal to the remaining Incremental Amount or in each case~~ such ~~lesser amount approved by~~ shorter period as the Administrative ~~Agent), (ii~~Agent may agree in its reasonable discretion) after the date on which such ~~Incremental~~ notice is delivered to Administrative Agent; provided that any Lender offered or approached to provide all or a portion of any New Loan Commitments ~~are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice)~~may elect or decline, and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion~~) and additional banks~~, to provide such New Loan Commitment; provided that, at the request of the Borrower, the Joint Lead Arrangers (in consultation with the Borrower), will use their commercially reasonable efforts to obtain financial institutions (reasonably satisfactory to the Borrower) to provide a commitment to the extent necessary to satisfy the Borrower’s request for New Loans subject to prevailing market conditions and ~~other institutional lenders who will~~ payment of customary fees. Such New Loan Commitments shall become ~~Incremental Term Lenders~~ effective as of such Increased Amount Date; provided that (1) no Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Loan Commitments and to the making of any tranche of New Loans pursuant thereto and after giving effect to any Permitted Acquisition consummated in ~~connection~~ accordance therewith~~. The~~ ; (2) the proceeds of any New Loans shall be used for general corporate purposes of the Borrower and ~~each Incremental~~ its Subsidiaries (including Permitted Acquisitions); (3) the New Loans shall share ratably in the Collateral; (4) the New Loans that are term loans (“New Term ~~Lender~~ Loans”) shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions share ratably in any mandatory prepayments of the ~~Incremental Loans~~ existing Term Loans; (~~excluding amortization~~5) in the case of any New Term Loans, ~~maturity, pricing, fees and rate floors)~~ the maturity date thereof shall not be ~~identical to those of~~ earlier than the ~~Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final~~ latest maturity date of any ~~Other Loans~~ Term Loan Tranche and the weighted average life to maturity shall be ~~no earlier~~ equal to or greater than the ~~Maturity Date, and (ii) the~~ weighted average life to maturity of the ~~Other~~ Term Loans that are not New Loans; (6) in the case of any New Loans that are revolving loans (“New Revolving Loans”) the maturity date thereof shall be the then latest maturity date of any Revolving Tranche and such New Revolving Loans shall ~~be no shorter than~~ not require any scheduled commitment reductions prior to such maturity date; (7) the ~~average life to maturity~~ New Revolving Loans shall share ratably in any mandatory prepayments of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other existing Revolving Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time (8) all terms and ~~the “LIBOR floor” applicable to the initial Loans, and,~~ documentation with respect to ~~such excess, the “LIBOR floor” applicable~~ any New Loans which differ from those with respect to the ~~outstanding~~ Loans under the applicable Facility shall be ~~increased~~ reasonably satisfactory to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.the

Appears in 1 contract

Samples: Credit Agreement (Allison Transmission Holdings Inc)

Appears in 1 contract

Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Incremental Loans. ~~(a) The~~ Borrower may, from time to time, on up to five (5) occasions after the November 2013 Incremental Term Loan Effective Date, by written notice to Administrative Agent, elect to increase the ~~Administrative Agent from time to time, request Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan~~ Revolving Commitments ~~are established, from~~ or enter into one or more tranches of incremental term loans (each an “Incremental Term ~~Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments~~ Loan”), in ~~their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be~~ each case in minimum increments of $~~1,000,000~~ 25,000,000 (or such other amount as may be acceptable to Issuing Bank, Administrative Agent and ~~a minimum~~ Borrower), so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $~~5,000,000 or equal~~ 800,000,000 from and after the November 2013 Incremental Term Loan Effective Date. Any such election must be made by the Borrower during the period from the Effective Date to the ~~remaining Incremental Amount~~ date that is 30 days prior to the Revolving Termination Date (or such later date to which the Revolving Commitments have been extended pursuant to any Extension Permitted Amendment entered into in ~~each~~ accordance with Section 2.18) in the case of any election to increase the Revolving Commitments, or the Term Loan Maturity Date (or such ~~lesser amount approved by~~ later date to which the ~~Administrative Agent~~maturity of the Term Loans has been extended pursuant to any Extension Permitted Amendment entered into in accordance with Section 2.18), ~~(ii)~~ in the ~~date on which such~~ case of any election to incur Incremental ~~Loan Commitments are requested~~ Term Loans. Administrative Agent and/or its Affiliates shall use commercially reasonable efforts, with the assistance of Borrower, to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ arrange a syndicate of ~~such notice)~~Lenders willing to increase their existing Revolving Commitments, ~~and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans~~ or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in such Incremental Term Loans, or extend Revolving Commitments, as the case may be (each existing Lender so agreeing to an increase in its ~~sole discretion)~~ Revolving Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender” and ~~additional banks~~each new bank, financial ~~institutions~~ institution or other entity, an “Augmenting Lender”). Each Increasing Lender and each Augmenting Lender increasing or extending a Revolving Commitment shall be acceptable to Issuing Bank and Swingline Lender. No consent of any Lender (other ~~institutional lenders who will become~~ than the Lenders participating in the increase or any Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floorsLoan) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary required for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in Revolving Commitments or Incremental Term Loan pursuant to this Section 2.15. Increases and new Revolving Commitments and Incremental Term Loans created pursuant to this Section 2.15 shall become effective on the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees thatdate agreed by Borrower, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the ~~Borrower~~ relevant Increasing Lenders or Augmenting Lenders, and Administrative Agent shall notify each Lender thereof. Such Incremental Term Loans and increases in the Revolving Commitments shall be evidenced by the execution and delivery Borrower, Administrative Agent and Increasing Lender or Augmenting Lender (and, in the case of any increase or extension of a Revolving Commitment, Issuing Bank and Swingline Lender), as the case may ~~revise this Agreement~~ be, of documentation acceptable to ~~evidence such amendments. (d)~~ Administrative Agent. Notwithstanding the foregoing, no increase in the Revolving Commitments (or in the Revolving Commitment of any Lender) or tranche of Incremental ~~Loan Commitment~~ Term Loans shall become effective under this Section ~~2.04 unless~~ 2.15 unless, (i) on the date of such effectiveness, (x) Administrative Agent shall have received such customary certificates, documents and opinion letters as it may reasonably request (it being understood and agreed that the forms of certificates, documents and opinion letters delivered pursuant to Section 5.01(a)(ii) through (vi) shall be acceptable), (y)(A) the conditions set forth in Section ~~4.02~~ 5.02(a) and (b) shall be ~~satisfied.~~ satisfied and (eB) ~~Each~~ after giving effect to the increase in the Revolving Commitments and the Incremental Term Loans to be made on such date, Total Outstandings shall not exceed the Borrowing Base, and (z) Borrower shall be in pro forma compliance with the covenants set forth in Section 8.14 after giving effect to any Loans to be made on such date and the application of the ~~parties hereto hereby agrees that the~~ proceeds therefrom as if made and applied on such date, and, Administrative Agent ~~may~~shall have received a certificate certifying as to the satisfaction of each of clauses (x), (y) and (z) dated such date (including calculations in ~~consultation~~ reasonable detail showing pro forma compliance with the covenants in Section 8.14) and executed by a Responsible Officer of Borrower, ~~take~~ which certificate can be incorporated into and constitute a part of an Incremental Amendment executed by Borrower pursuant to this Section 2.15. On the Effective Date of any ~~and all action as may be reasonably necessary to ensure that all~~ increase in the Revolving Commitments or any Incremental Term Loans ~~(other than Other Loans), when originally~~ being made, ~~are included~~ (i) each relevant Increasing Lender and Augmenting Lender shall make available to Administrative Agent such amounts in immediately available funds as Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each ~~Borrowing~~ Lender’s portion of the outstanding Revolving Loans ~~on a pro rata basis. This may~~ of all the Lenders to equal its Revolving Commitment Percentage of such outstanding Revolving Loans, and (ii) except in the case of any Incremental Term Loans, Borrower shall be ~~accomplished by requiring each~~ deemed to have repaid and reborrowed all outstanding ~~Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ Revolving Loans as of the date of ~~each Incremental Loan~~any increase in the Revolving Commitments (with such reborrowing to consist of the Types of Revolving Loans, or with related Interest Periods if applicable, specified in a notice delivered by ~~allocating a portion~~ Borrower, in accordance with the requirements of ~~each Incremental Loan~~ Section 2.01(a)). The deemed payments made pursuant to ~~each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion~~ clause (ii) of ~~Eurocurrency Loans to ABR Loans required by~~ the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurodollar Loan, shall be subject to indemnification by Borrower pursuant to the provisions of Section 3.05 if the deemed payment occurs other than on the last day of the related Interest Periods. Revolving Loans made pursuant to any increased Revolving Commitment and the Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) in the case of Incremental Term Loans, (x) shall not mature earlier than the Term Loan Maturity Date (but may have amortization prior to such date) and (y) shall have the weighted average life to maturity no shorter than the weighted average life to maturity of the initial Term Loans, and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the initial Term Loans, as applicable; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Term Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term Loan Maturity Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Increases in Revolving Commitments and Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, Administrative Agent, and, in the case of increases in Revolving Commitment, Issuing Bank and Swingline Lender. The Incremental Amendment may, without the consent of any other Lenders (except as expressly required pursuant to Section 11.01), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Administrative Agent, to effect the provisions of this Section 2.15. If Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Commitment hereunder, or provide Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Term Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid at any ~~reduction in the amortization payments to which the Lenders were entitled before such recalculation~~time.

Appears in 1 contract

Samples: Credit Agreement (American Realty Capital Properties, Inc.)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to ~~time~~time after the Acquisition Date, request (x) Incremental ~~Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental~~ Term Loan Commitments ~~are established,~~ from one or more Incremental Term ~~Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible ~~Assignees~~Assignees and (y) ~~willing to provide~~ Incremental Revolving Credit Commitments from one or more Incremental Revolving Lenders; provided that the aggregate amount of Incremental Term Loans and/or Incremental Revolving Credit Commitments so requested by the Borrower shall not exceed (i) the Incremental Loans Amount plus (ii) an additional amount if, at the time of (and after giving pro forma effect at such time to) the incurrence of such Incremental Term Loan Commitments ~~in their own discretion~~and/or Incremental Revolving Credit Commitments and the application of proceeds therefrom, the Senior Secured Net Leverage Ratio is equal to or less than 3.75 to 1.00 (assuming all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were secured by the Borrower on a first lien basis, whether or not so secured, and all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were fully drawn on such date, whether or not so drawn). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount ~~or in each case such lesser amount approved by the Administrative Agent~~with respect to Incremental Term Loan Commitments), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), ) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Loan Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Loan Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such ~~amendments~~amendments (without the consent of any other Lender); provided that: (i) the Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the terms of the Incremental Revolving Credit Commitments and Incremental Revolving Loans shall be identical to the Revolving Credit Commitments and the Revolving Loans; (ii) the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except, in the case of Other Term Loans, as to maturity, interest rates, fees, amortization and call protection (which shall be subject to the following clauses (v) through (z)) and except as otherwise agreed by the Borrower and the Administrative Agent; provided that unless otherwise agreed by the Required Lenders, (v) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (w) the weighted average life to maturity of the Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans, (x) if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, (y) the Other Term Loans shall benefit from the same Guarantees as those of the Term Loans and (z) the ranking of the Other Term Loans shall, as determined by the Borrower (1) rank pari passu or junior with the Credit Facilities in right of payment and (2) be unsecured or secured by the Collateral on a pari passu or junior basis with the Credit Facilities (and, to the extent subordinated in right of payment or security to the Credit Facilities, shall be subject to entry into a customary intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent and Borrower); and (iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments, the Administrative Agent and the Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Administrative Agent shall promptly notify the Borrower and the Revolving Credit Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to any Revolving Credit Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender such participation interests in L/C Exposure outstanding on such Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrower shall prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to such increased Revolving Credit Commitments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.26 unless (i) on the date of such effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), (w) the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be satisfied, (x) Intermediate Holdings (or, after the Amendment No. 3 Effective Date, the Borrower) shall be in compliance, on a pro forma basis, with the financial covenant contained in Section 6.13 (assuming that the related Incremental Loans were drawn in full on such date and regardless of whether Intermediate Holdings (or, after the Amendment No. 3 Effective Date, the Borrower) is otherwise required to comply with such financial covenant at such time), (y) the Borrower shall have demonstrated to the Administrative Agent’s reasonable satisfaction that the full amount of the applicable Incremental Loan Commitments (assuming that the related Incremental Loans were drawn in full on such date) is permitted to be incurred pursuant to the terms of the Senior Notes and any other material Indebtedness of Intermediate Holdings, the Borrower and the Subsidiaries (or, after the Amendment No. 3 Effective Date, other material indebtedness of the Borrower and the Subsidiaries) then outstanding and (z) the Administrative Agent shall have received a certificate to the foregoing dated such date and executed by a Financial Officer of Intermediate Holdings (or, after the Amendment No. 3 Effective Date, the Borrower) and (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Loan Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Acquisition Date under Section 4.03. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (e) The Incremental Loans and Incremental Loan Commitments established pursuant to this Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Assumption Agreement applicable thereto. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans or any such new Incremental Loan Commitments.

Appears in 1 contract

Samples: Credit Agreement (Advanced Disposal Services, Inc.)

Incremental Loans. (ai) ~~The Borrower may~~So long as no Default or Event of Default has occurred and is continuing, ~~by written notice to the Administrative Agent~~ at any time and from time to ~~time~~time prior to December 31, 2002, the Borrowers may request pursuant to the procedure set forth in Section 2.16, the addition of an Incremental Facility ------------ consisting of a new tranche of revolving loans (each, an "Incremental ----------- Loan"); provided, however, that the Borrowers may not make a request ---- -------- for an Incremental Facility if after giving effect thereto the sum of all then outstanding Incremental Loans (and unused Incremental Commitments therefor) would exceed the then Maximum Incremental Amount. Each Incremental Loan ~~Commitments~~shall: (A) unless otherwise specifically provided in this Agreement, ~~in an amount not to exceed~~ upon the effectiveness of the Incremental ~~Amount at~~ Commitment relating thereto as provided in Section ------- 2.01(b)(ii), be deemed to be a Loan for all purposes under this ----------- Agreement, including for purposes of the ~~time~~ sharing of Collateral and guarantees under the Guaranty Agreements all on a pari passu basis ---- ----- with all other Obligations; (B) have such ~~Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which~~ pricing as may ~~include any existing Lender~~ be agreed by the Borrowers and ~~which must be Eligible Assignees) willing~~ the Banks agreeing to provide such Incremental Loans pursuant to the provisions of this Section 2.01(b) and Section 2.16 and (C) --------------- ------------ otherwise have all of the same terms and conditions as the loans that are not Incremental Loans. In addition, unless otherwise specifically provided in this Agreement, all references in the Loan Documents to Loans shall be deemed to include references to Incremental Loans made pursuant to this Agreement. No Bank shall have any obligation to make an Incremental Loan unless and until it commits to do so. Subject to the proviso at the end of Section 2.16(a), --------------- Commitments in ~~their own discretion. Such notice~~ respect of Incremental Loans shall ~~set forth~~ become Incremental Commitments under this Agreement pursuant to (ix) ~~the amount of the~~ an amendment (each, an "Incremental Loan ~~Commitments being requested~~ Amendment") to this Agreement executed by the -------------------------- Borrowers, each Bank or other approved financial institution agreeing to provide such commitment (~~which~~ and no other Bank shall be ~~in minimum increments of $1,000,000~~ required to execute such amendment) and ~~a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by~~ the Administrative Agent~~), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice)~~, and (~~iii~~y) ~~whether such Incremental~~ any amendments to the other Loan ~~Commitments are commitments to make additional Loans or commitments to make term loans with terms different from~~ Documents (executed by the ~~Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion)~~ relevant Credit Party and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent ~~an Incremental Loan Assumption Agreement and such other documentation~~ only) as the Administrative Agent shall reasonably ~~specify~~ deem appropriate to ~~evidence~~ effect such purpose. Notwithstanding anything to the contrary contained herein, the effectiveness of such Incremental Loan ~~Commitment of each Incremental Term Lender. The terms and provisions of~~ Amendment shall be subject to the satisfaction on the date thereof and, if different, on the date on which the Incremental Loans ~~(excluding amortization~~are made, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each ~~Incremental Loan Assumption Agreement. Each~~ of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section ~~4.02 shall be satisfied.~~5.03. ------------ (eii) ~~Each of~~ So long as (x) the ~~parties hereto hereby agrees that~~ Borrowers shall have given the Administrative Agent ~~may~~no less than five Business Days' prior notice of the effectiveness thereof and (y) any financial institution not theretofore a Bank which is providing an Incremental Commitment shall have become a Bank under this Agreement pursuant to an Incremental Loan Amendment, ~~in consultation with~~ the ~~Borrower~~Incremental Commitment being requested by the Borrowers shall become effective under this Agreement upon the effectiveness of such Incremental Loan Amendment. Upon such effectiveness, ~~take any~~ Schedule 2.01 shall be deemed amended to reflect such ------------- commitments. In the event that an Incremental Facility shall have become effective, the Bank or Banks providing such Incremental Commitments shall be deemed to have agreed, severally and ~~all action as may be reasonably necessary~~ not jointly, upon the terms and subject to ~~ensure that all Incremental Loans (other than Other Loans)~~the conditions of this Agreement, ~~when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing~~ to ~~be converted into an ABR Borrowing on~~ make from time to time during the period from the date of ~~each Incremental Loan, or by allocating a portion~~ the effectiveness of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan ~~Assumption Agreement. In addition~~Amendment through the Maturity Date, one or more Incremental Loans to the ~~extent any Incremental Loans are not Other Loans,~~ Borrowers pursuant to the ~~scheduled amortization payments under~~ provisions of Section ~~2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the~~ 2.03 in an aggregate principal amount not ------------ exceeding at any time the Incremental Commitment of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before Bank at such ~~recalculation~~time.

Appears in 1 contract

Samples: Credit Agreement (Nexstar Broadcasting of the Wichita Falls LLC)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request ~~Incremental Loan Commitments~~(i) prior to the Revolving Credit Maturity Date, an increase to the existing Revolving Credit Commitments in an aggregate amount not to exceed the Incremental Revolving Credit Amount at from one or more Incremental Revolving Credit Lenders, all of which must be Eligible Assignees (any such increase, the ~~time such~~ “Incremental Revolving Credit Commitments”) and/or (ii) prior to the Term Loan Maturity Date, the establishment of Incremental Term Loan Commitments ~~are established,~~ in an aggregate amount not to exceed the Incremental Term Loan Amount from one or more Incremental Term ~~Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (iA) the amount of ~~the~~ Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments being requested (which shall be in minimum increments of $~~1,000,000~~ 500,000 and a minimum amount of $~~5,000,000~~ 1,000,000 or such lesser amount equal to the remaining Incremental Revolving Credit Amount or ~~in each case such lesser amount approved by the Administrative Agent~~Incremental Term Loan Amount, as applicable), (iiB) the date on which such Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), ) and (~~iii~~C) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans having the same terms as the initial Term Loans made on the Closing Date or commitments to make term loans with terms different from the initial Term Loans made on the Closing Date (the “Other Term Loans”). (b) The Borrower may seek Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and~~ and, subject to the Administrative Agent’s consent (not to be unreasonably withheld, conditioned or delayed), additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Revolving Credit Lender and/or Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Revolving Credit Commitment and/or Incremental Term Loan Commitment of ~~each Incremental Term Lender~~such Person. The terms and provisions of the Incremental Revolving Credit Commitments shall be identical to the Revolving Credit Commitments (it being understood that in connection with the establishment of any Incremental Revolving Credit Commitments in respect of which the initial All-In Yield applicable to Incremental Revolving Credit Loans under such Incremental Revolving Credit Commitments (~~excluding amortization~~calculated assuming such Incremental Revolving Credit Commitments are fully drawn on the date so established) exceeds (the amount of such excess being referred to herein as the “Revolver Yield Differential”) the All-In Yield then in effect for Eurodollar Revolving Loans, ~~maturity~~the Applicable Margin then in effect for all Revolving Loans shall automatically be increased by the Revolver Yield Differential, ~~pricing, fees~~ effective upon the effectiveness of such Incremental Revolving Credit Commitments pursuant to the applicable Incremental Loan Assumption Agreement). The terms and ~~rate floors)~~ provisions of the Incremental Term Loans shall be identical to those of the Term Loans made pursuant to clause (i) of Section 2.01(a), except as otherwise set forth ~~herein~~herein or in the Incremental Loan Assumption Agreement, and any such terms not consistent with those of such Term Loans shall be reasonably satisfactory to the Administrative Agent. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the Other Term Loans shall be no shorter than the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Loans.~~ Term Loans made pursuant to clause (ci) of Section 2.01(a) and (iii) if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (increased by the amount that any “LIBOR floor” applicable to such Other Term Loans onat the date of the calculationapplicable time exceeds the Adjusted LIBO Rate onat such datetime) and (y) if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Term Loans, being referred to herein as “~~OID~~Discount”), the amount of such ~~OID~~ Discount divided by the lesser of (1A) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of such Other Term Loans and (2B) four) exceeds the ~~applicable margin~~ sum of the Applicable Margin then in effect for ~~Eurocurrency~~ Eurodollar Term Loans plus one fourth of the Closing Fees paid pursuant to Section 2.05(d) in respect of the Term Loans made pursuant to clause (i) of Section 2.01(a) by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the ~~applicable margin~~ Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Revolving Credit Commitment and/or Incremental Term Loan Commitment and the Incremental Revolving Credit Loans and/or Incremental Term Loans, as applicable, evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (dc) Notwithstanding the foregoing, no Incremental Revolving Credit Commitment or Incremental Term Loan Commitment shall become effective under this Section ~~2.04~~ 2.23 unless (i) on the date of such ~~effectiveness,~~ effectiveness the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be ~~satisfied~~satisfied (provided that, if the proceeds of Incremental Term Loans are to be used to finance a Permitted Acquisition, then, in lieu of the conditions set forth in paragraphs (b) and (c) of Section 4.01, and subject to Section 1.06, only (x) “specified representations” pursuant to customary “SunGard” or “certain funds” conditionality (conformed as necessary for such Permitted Acquisition) shall be required to be satisfied and (y) at the time of and immediately after such effectiveness, no Default or Event of Default under Section 7.01(b), (c), (g) or (h) shall have occurred and be continuing) and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by a Financial Officer of the Borrower, (ii) the Incremental Term Loans shall rank pari passu in right of payment and be equal with respect to security under the Loan Documents and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party, (iii) all fees and expenses owing in respect of such Incremental Revolving Credit Commitments and/or Incremental Term Loan Commitments to the Administrative Agent and the Lenders shall have been paid and (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each Incremental Term Lender) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, including, without limitation, amendments to the Mortgages, datedown endorsements to the title policies, flood zone determinations and the other deliverables, pursuant to Section 4.02(g). (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments, when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. ~~This~~ With respect to Incremental Term Loans, this may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Term Borrowing to be converted into an ABR Term Borrowing on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding ~~Eurocurrency~~ Eurodollar Term Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Term Loans to ABR Term Loans reasonably required by the ~~preceding sentence~~ Administrative Agent to effectuate the foregoing shall be subject to Section ~~2.15~~2.16. With respect to Incremental Revolving Credit Commitments, this may be accomplished by, with the consent of the Borrower, causing the Revolving Credit Lenders to assign portions of their outstanding Revolving Loans to Incremental Revolving Credit Lenders. If any Incremental Term Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Term Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Incremental Loan Assumption Agreement (AAC Holdings, Inc.)

Incremental Loans. In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a), (b) ~~The Borrower may~~and (c) above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Borrower may request that the Lenders (or other financial institutions agreed to by the Borrower and the Administrative Agent) offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental ~~Loan Commitments~~Loan") under this paragraph (d). In the event that one or more of the Lenders (or such other financial institutions) offer, in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount at the time such~~ amount of their respective Incremental Loan Commitments ~~are established, from~~ (and such financial institutions shall become "Incremental Loan Lenders" hereunder). The Incremental Loans to be made pursuant to any such agreement between the Borrower and one or more ~~Incremental Term~~ Lenders (~~which may include~~ including any ~~existing Lender and which must~~ such new Lenders) in response to any such request by the Borrower shall be ~~Eligible Assignees~~deemed to be a separate "Series" of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) ~~willing to provide such~~ the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (d), each Incremental Loan Lender in ~~their own discretion. Such notice shall set forth (i)~~ respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan ~~Commitments being requested (which shall be in minimum increments~~ Commitment of ~~$1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which~~ such Incremental Loan ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ Lender in respect of such ~~notice)~~Series as in effect from time to time. Thereafter, and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver subject to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and ~~provisions~~ conditions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption this Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may ~~revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no~~ convert Incremental ~~Loan Commitment shall become effective under this Section 2.04 unless on the date~~ Loans of such ~~effectiveness, the conditions set forth~~ Series of one Type into Incremental Loans of such Series of another Type (as provided in Section ~~4.02 shall be satisfied. (e~~2.06) ~~Each~~ or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the ~~parties hereto hereby agrees that the Administrative Agent may,~~ same Type (as provided in ~~consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all~~ Section 2.06). Incremental Loans ~~(other than Other Loans), when originally made,~~ of any Series that are ~~included in each Borrowing of outstanding Loans on a pro rata basis. This~~ prepaid may not be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be reborrowed as ~~set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any~~ Incremental Loans ~~are not Other Loans,~~ of the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationsame Series.

Appears in 1 contract

Samples: Credit Agreement (Ohio Logos Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent and the Person appointed by the Borrower to arrange Incremental Loan Commitments (such Person (who may be (i) the Administrative Agent, if it so agrees or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount at (in the ~~time such~~ case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Loans available); provided that Incremental Loan Commitments ~~are established, from one~~ may be incurred in the Available Currency or ~~more~~ an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental ~~Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Arranger. The Incremental Arranger shall promptly deliver a copy of such notice to ~~provide such Incremental Loan Commitments in their own discretion~~each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Incremental Arranger in its reasonable discretion), or such lesser amount equal to the ~~remaining~~ Incremental Loan Amount ~~or in each case~~ at such ~~lesser amount approved by the Administrative Agent~~time), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 five Business Days ~~nor more than 60 days~~ (or such shorter period as agreed by the Incremental Arranger) after the date of such notice), ) and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make ~~term loans~~ Loans with terms different from ~~the~~ such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that (i) the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund), (ii) with respect to Incremental Term Loan Commitments, any Affiliated Lender providing an Incremental Term Loan Commitment shall be subject to the same restrictions set forth in Section 9.04 as they would otherwise be subject to with respect to any purchase by or assignment to such Affiliated Lender of Term Loans and (iii) Affiliated Lenders may not provide Incremental Revolving Credit Commitments. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent and the Incremental Arranger an Incremental Loan Assumption Agreement and such other documentation as the ~~Administrative Agent~~ Incremental Arranger shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The ~~terms~~ Other Loans and ~~provisions~~ any Incremental Revolving Credit Commitments providing for Incremental Revolving Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall have fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be secured by the Collateral on a pari passu basis and (iii) (A) in the case of Incremental Term Loans, (x) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any mandatory prepayment of Term Loans (except that, unless otherwise permitted under this Agreement, such Incremental Term Loans may not participate on a greater than pro rata basis as compared to any earlier maturing Class of Term Loans) and (y) may participate on a pro rata basis, less than pro rata basis or greater than pro rata basis in any voluntary prepayment of Term Loans and (B) in the case of Incremental Revolving Credit Commitments and Incremental Revolving Loans, (x) shall provide that the borrowing and repayment (except for (A) payments of interest and fees at different rates on Incremental Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of the Incremental Revolving Credit Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause (y) below)) of Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ with respect to Incremental Revolving Credit Commitments after the associated Incremental Facility Closing Date shall be ~~identical to those~~ made on a pro rata basis or less than pro rata basis (but not more than a pro rata basis) with all other Revolving Credit Commitments then existing on the Incremental Facility Closing Date and (y) may provide that the permanent repayment of Revolving Credit Loans with respect to, and termination or reduction of, Incremental Revolving Credit Commitments after the ~~Loans except as otherwise set forth herein~~associated Incremental Facility Closing Date be made on a pro rata basis, less than pro rata basis or greater than pro rata basis with all other Revolving Credit Commitments. Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (iA) the final maturity date of any Other Loans that are Term Loans (the “Other Term Loans”), shall be no earlier than the Initial Term Loan Maturity Date, ~~and~~ (iiB) the ~~average life~~ final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Commitment Maturity Date, (C) the Weighted Average Life to ~~maturity~~ Maturity of the Other Term Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of the Initial Term Loans. , (cD) the All-In Yield applicable to the Other Loans shall be determined by the Borrower and the applicable Incremental Lenders and shall be set forth in each applicable Incremental Loan Assumption Agreement; provided, however, that on or prior to the date that is 12 months from the Funding Date, the All-In Yield applicable to such Other Term Loans of the same currency as the Initial Term Loans (other than Other Term Loans (w) Incurred pursuant to Section 4.04(a) of Annex I, Section 4.04(b)(1)(B)(y) of Annex I, (x) having a maturity date that is more than two years after the Initial Term Loan Maturity Date or (y) Incurred in connection with an acquisition or other Investment) shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans plus 75 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor) with respect to such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 75 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor or an Alternate Base Rate floor on any Other Term Loans shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor or Alternate Base Rate floor, as applicable, applicable to such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) and (y) above and (E) the other terms and documentation in respect of such Other Loans (except for covenants or other provisions (i) conformed (or added) in the Loan Documents pursuant to the related Incremental Loan Assumption Agreement for the benefit of all of the Lenders; provided that (x) in the case of any Class of Incremental Term Loans and Incremental Term Loan Commitments, “soft-call” provisions may be added solely for the benefit of the Term Lenders and (y) in the case of any Class of Incremental Revolving Loans and Incremental Revolving Credit Commitments, financial maintenance covenants may be added solely for the benefit of the Revolving Credit Lenders or (ii) applicable only to periods after the Latest Maturity Date as of the Incremental Facility Closing Date (collectively the “Additional Covenants”) which may be added without the consent of any other party)), to the extent not consistent with the Term Facilities or the Revolving Credit Facilities, as applicable, shall be reasonably satisfactory to the Incremental Arranger; provided that such other terms and documentation shall be deemed to be reasonably satisfactory to such Incremental Arranger if they reflect market terms and conditions (taken as a whole) at the ~~initial yield on~~ time of incurrence of such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower ~~or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”~~in good faith), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The ~~Administrative Agent~~ Incremental Arranger shall promptly notify each Lender that has Incremental Loan Commitments and the Borrower as to the effectiveness of each Incremental Loan Assumption ~~Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any~~ Agreement and each such effective Incremental Loan Assumption ~~Agreement, this~~ Agreement ~~shall~~ may be ~~deemed amended~~ provided to the ~~extent (but only to the extent) necessary to reflect the existence~~ Lenders and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.the

Appears in 1 contract

Samples: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) ~~The~~ Subject to Section 2.21(c), the Borrower may, not more than three times after the Closing Date, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an aggregate amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender; provided that if the related Incremental Loans are to be issued with original issue discount, the applicable Incremental Loan Assumption Agreement shall set forth the amount of such original issue discount (which discount shall apply to all such Incremental Loans and Section 9.20 shall be amended to reflect such original issue discount). The terms and provisions of the Incremental Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be substantially identical to those of the ~~Loans~~ Loans, except as otherwise set forth ~~herein~~in the immediately succeeding sentence. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the ~~Loans.~~ Loans and (ciii) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if the “effective interest rate margin” for such Other Loans ~~are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed~~ as ~~a percentage~~ of the ~~Other Loans, being referred to herein as “OID”), the amount~~ date of ~~such OID divided by the lesser of (1) the average life to maturity~~ incurrence of such Other Loans (which, for purposes of calculating the “effective interest rate margin” only, shall be determined by the Administrative Agent and deemed to include all upfront or similar fees or original issue discount (2amortized over the life of such Other Loans) ~~four~~payable to all Lenders providing such Other Loans) exceeds the “effective interest rate margin” then applicable ~~margin~~ to existing outstanding Loans (determined on the same basis as provided in the immediately preceding parenthetical), the Applicable Margins for all then ~~in effect for Eurocurrency~~ outstanding Loans shall be increased automatically as of such date by ~~more than 50 basis points (~~the amount of such excess ~~above 50 basis points being referred to herein as~~ (the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be ~~satisfied~~satisfied (it being agreed that, for purposes of this clause (i), any reference to the “Closing Date” in any such paragraph of Section 4.01 or in the lead-in language to Section 4.01 shall be deemed to be a reference to the applicable “Incremental Loan Closing Date”) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) except as otherwise specified or required in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions, public records and closing certificates (other than insurance certificates) reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iii) prior to such effectiveness, if the relevant Incremental Loan Maturity Date (A) is different from the Maturity Date, or (B) is different from the maturity date of the Loans specified in the Borrower Mortgage, as then in effect, the Borrower Mortgage shall have been amended (or, if necessary or reasonably deemed advisable by the Collateral Agent, amended and restated or otherwise modified) to confirm that the Borrower Mortgage secures the Obligations with respect to such Incremental Loans, and to reflect the Final Maturity Date, (iv) on or prior to the date of such effectiveness, the title insurance company (or an agent therefor) that issued, in favor of the Collateral Agent, the lender’s original title insurance policy in connection with the Loans made on the Closing Date shall have issued (or executed and delivered to the Collateral Agent an irrevocable commitment to issue) in favor of the Collateral Agent, (A) such additional and/or replacement title insurance in an amount equal to (when combined with the amount of the original title insurance remaining in place) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loans, and (B) such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent or any Lender (including any Lender that is not an Incremental Lender), insuring such amended, amended and restated or otherwise modified Borrower Mortgage as a first lien on the Mortgaged Property (as defined therein), subject to any Liens permitted by Section 6.02 and otherwise no less favorable to the Lenders than the original title insurance issued on the Closing Date (with such changes as are necessary to comply with customary title insurance practices), (v) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loan Commitments and the corresponding borrowing with respect thereto would not exceed $50,000,000, and (vi) Consolidated EBITDA for the period of four consecutive fiscal quarters most recently ended on or prior to the date the proposed Incremental Loan Commitments would be effective is equal to or greater than $50,000,000. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each ~~Borrowing~~ borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency Borrowing~~ Eurodollar borrowing to be converted into an ABR ~~Borrowing~~ borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency Borrowing~~ Eurodollar borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.19. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency Borrowing~~Eurodollar borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.08(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Rentech Inc /Co/)

Incremental Loans. In addition to Borrowings of Revolving Credit Loans and Term Loans pursuant to paragraphs (a), (b) ~~The Borrower may~~and (c) above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Borrower may request that the Lenders (or other financial institutions agreed to by the Borrower and the Administrative Agent) offer to enter into commitments to make additional term loans (each such loan being herein called an "Incremental ~~Loan Commitments~~Loan") under this paragraph (d). In the event that one or more of the Lenders (or such other financial institutions) offer, in their sole discretion, to enter into such commitments, and such Lenders (or financial institutions) and the Borrower agree as to the amount of such commitments that shall be allocated to the respective Lenders (or financial institutions) making such offers and the fees (if any) to be payable by the Borrower in connection therewith, such Lenders (or financial institutions) shall become obligated to make Incremental Loans under this Agreement in an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount at the time such~~ amount of their respective Incremental Loan Commitments ~~are established, from~~ (and such financial institutions shall become "Incremental Loan Lenders" hereunder). The Incremental Loans to be made pursuant to any such agreement between the Borrower and one or more ~~Incremental Term~~ Lenders (~~which may include~~ including any ~~existing Lender and which must~~ such new Lenders) in response to any such request by the Borrower shall be ~~Eligible Assignees~~deemed to be a separate "Series" of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) ~~willing to provide such~~ the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $10,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans shall not exceed $500,000,000; provided that (A) the Incremental Loans (designated Tranche D Term Loans) made upon the Amendment No. 2 Effective Date and the Tranche C Term Loans shall be in ~~their own discretion. Such notice shall~~ addition to and not utilize such $500,000,000 limit, so long as the requirements set forth in the last sentence of the definition of "Incremental Loan Commitment" in Section 1.01 shall be satisfied in respect of such Loans and (iB) the Additional Tranche Term A Loans made upon the Amendment No. 1 Effective Date shall not be deemed to be Incremental Loans for any purpose of this Agreement. Following the acceptance by the Borrower of the offers made by any one or more Lenders to make any Series of Incremental Loans pursuant to the foregoing provisions of this paragraph (d), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and conditions of this Agreement, to make such Incremental Loans to the Borrower during the period from and including the date of such acceptance to and including the commitment termination date specified in the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan ~~Commitments being requested (which shall be in minimum increments~~ Commitment of ~~$1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which~~ such Incremental Loan ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ Lender in respect of such ~~notice), and (iii) whether such~~ Series as in effect from time to time. The Incremental ~~Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the~~ Loans (~~“Other~~ designated Tranche D Term Loans~~”). (b~~) ~~The Borrower may seek Incremental Loan Commitments from existing Lenders (each~~ upon the Amendment No. 2 Effective Date, may, at the option of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan ~~Assumption Agreement and~~ Lender, be made through the conversion of existing Tranche C Term Loans into Incremental Loans of such ~~other documentation~~ Series as provided in the ~~Administrative Agent shall reasonably specify to evidence~~ last sentence of the definition of "Incremental Loan ~~Commitment of~~ Commitment" in Section 1.01 (and each ~~Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical~~ reference in this Agreement to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of any such Incremental Loans or words of similar import, shall in the ~~Other Loans; provided that~~case of such Lender be deemed to include such conversion). Thereafter, subject to the ~~extent any portion~~ terms and conditions of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption this Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may ~~revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no~~ convert Incremental ~~Loan Commitment shall become effective under this Section 2.04 unless on the date~~ Loans of such ~~effectiveness, the conditions set forth~~ Series of one Type into Incremental Loans of such Series of another Type (as provided in Section ~~4.02 shall be satisfied. (e~~2.06) ~~Each~~ or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the ~~parties hereto hereby agrees that the Administrative Agent may,~~ same Type (as provided in ~~consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all~~ Section 2.06). Incremental Loans ~~(other than Other Loans), when originally made,~~ of any Series that are ~~included in each Borrowing of outstanding Loans on a pro rata basis. This~~ prepaid may not be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be reborrowed as ~~set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any~~ Incremental Loans ~~are not Other Loans,~~ of the ~~scheduled amortization payments under Section 2.09 required to be made after the making~~ same Series. Proceeds of ~~such~~ Incremental Loans shall be ~~ratably increased by~~ available for any use permitted under the ~~aggregate principal amount~~ applicable provisions of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationSection 6.09."

Appears in 1 contract

Samples: Credit Agreement (Lamar Advertising Co/New)

Appears in 1 contract

Samples: Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Incremental Loans. (a) ~~The~~ At any time after the Closing Date, on one or more occasions, the Parent Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans, including a borrowing of an additional term loan the principal amount of which will be added to the outstanding principal amount of the existing tranche of Term Loans with the latest maturity date (any such additional term loan, an “Incremental Term Loan”); or (ii) one or more increases in the Aggregate Revolving A Commitments or Aggregate Revolving B Commitments, as applicable (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in to make revolving credit loans under the Revolving Credit Facilities (any such increase, an “Incremental Revolving Credit Increase” and, together with the Incremental Term Loans, the “Incremental Loans ”); provided that (1) the total aggregate initial principal amount (as of the date of incurrence thereof) of such requested Incremental Loan Commitments and Incremental Loans shall not to exceed the Incremental ~~Amount at~~ Facilities Limit and (2) the ~~time such~~ total aggregate amount for each Incremental Loan ~~Commitments are established~~Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $50,000,000 or, ~~from one or more~~ if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Incremental ~~Term Lenders (~~Effective Date”) on which ~~may include~~ the Parent Borrower proposes that any ~~existing Lender and which must be Eligible Assignees) willing to provide such~~ Incremental Loan ~~Commitments in their own discretion. Such notice~~ Commitment shall ~~set forth (i) the amount of the Incremental Loan Commitments being requested (~~be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000~~ date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent (or ~~equal to the remaining Incremental Amount or in each case~~ such ~~lesser amount~~ shorter period as may be approved by the Administrative Agent). The Parent Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person that meets the requirements of Section 13.7 (~~ii) the date on which such~~ but subject to any consents that may be required pursuant to Section 13.7(b)(i)), to provide an Incremental Loan ~~Commitments are requested~~ Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ provide all or a portion of ~~such notice), and (iii) whether such~~ any Incremental Loan ~~Commitments are commitments to make additional Loans~~ Commitment may elect or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate decline, in its sole discretion~~) and additional banks~~, ~~financial institutions and other institutional lenders who will become~~ to provide such Incremental ~~Term Lenders in connection therewith~~Loan Commitment or any portion thereof. ~~The Borrower and each~~ Any proposed Incremental ~~Term~~ Lender not responding by the Incremental Effective Date shall ~~execute and deliver~~ be deemed to ~~the Administrative Agent~~ have declined to provide an Incremental Loan ~~Assumption~~ Commitment or any portion thereof. Each Incremental Lender shall become a Lender or make its Incremental Loan Commitment under this Agreement ~~and such~~ pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement giving effect to the modifications permitted by this Section 2.9 and, as appropriate, the other ~~documentation as~~ Loan Documents, executed by the ~~Administrative Agent shall reasonably specify~~ Credit Parties, each Incremental Lender with respect to ~~evidence~~ the Incremental Loan ~~Commitment of each Incremental Term Lender. The terms and provisions of~~ under the Incremental ~~Loans~~ Facility Amendment (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extentapplicable) ~~necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby,~~ and the Administrative Agent ~~and~~ (provided that, with the ~~Borrower may revise this Agreement~~ consent of each Incremental Lender with respect to ~~evidence such amendments. (d) Notwithstanding~~ the ~~foregoing, no~~ Incremental Loan under the Incremental Facility Amendment, the Administrative Agent may execute such Incremental Facility Amendment on behalf of the applicable Incremental Lenders). Any Incremental Loan 93782947_8 Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such ~~effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each~~ Incremental Effective Date; provided that each of the ~~parties hereto hereby agrees that~~ following conditions has been satisfied or waived as of such Incremental Effective Date, which in the ~~Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all~~ case of an Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing Term Loan to be ~~converted into an ABR Borrowing on the date of each Incremental Loan~~used to finance a Limited Condition Acquisition, ~~or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence~~ shall be subject to Section ~~2.15. If~~ 1.7: (A) no Default or Event of Default shall exist on such Incremental Effective Date immediately prior to or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Administrative Agent shall have received from the Parent Borrower a covenant compliance certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Parent Borrower is in compliance with the financial covenants set forth in Section 9.1, in each case based on the financial statements most recently delivered pursuant to Section 7.1(a)(i) or 7.1(a)(ii), as applicable, both immediately before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be ~~allocated~~ fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VI shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an ~~existing Interest Period~~ earlier date, which representation and warranty shall remain true and correct as of such earlier date); (D) the proceeds of any Incremental Loans shall be used for ~~a Eurocurrency Borrowing, then~~ working capital and other general corporate purposes of the ~~interest rate thereon for such Interest Period~~ Parent Borrower and its Restricted Subsidiaries; (E) each Incremental Loan Commitment (and the ~~other economic consequences thereof~~ Incremental Loans made thereunder) shall constitute Obligations of the applicable Borrowers and shall be as secured and guaranteed with the other Extensions of Credit on a pari passu basis; (F) (1) in the case of each Incremental Term Loan (the terms of which shall be set forth in the ~~applicable~~ relevant Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.Facility Amendment):

Appears in 1 contract

Samples: Credit Agreement (Brinks Co)

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Third Amendment Effective Date, by written notice to the Administrative Agent ~~from time to time~~as provided below, request one or more Lenders (including Persons who shall become Incremental ~~Loan Commitments~~Lenders pursuant to this Section 2.01(c)) to (x) provide additional Term Loans or increase the amount of their Term Loans and/or (y) establish one or more additional tranches of term loans hereunder (collectively, ~~in an~~ the “Incremental Loans”); provided that (i)(A) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under 240(i) (the “General Incremental Loans”) shall not exceed $500,000,000; (B) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under 240(ii) (the “Specified Incremental Loans”) shall not exceed $200,000,000; (C) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under 240(iii) (the “Additional Specified Incremental Loans”) shall not exceed $530,000,000 and (D) the aggregate amount of Incremental Loans to be used solely for the purposes permitted under Section 6.08(d)(iv) (the “2012 Specified Acquisition Incremental Loans”) shall not exceed the ~~Incremental Amount~~ Maximum 2012 Transaction Debt Amount; (ii) both at the time of any such request and upon the effectiveness of any Incremental Loan Amendment with respect to an Incremental Loan, (A) no Default shall exist and (B) the First Lien Indebtedness Ratio (determined on a pro forma basis as of the relevant determination date as if such Incremental Loans had been outstanding on the most recent period of four consecutive fiscal quarters) shall not be greater than (x) 3.50 to 1.00 at any time during the period beginning on the Fourth Amendment Effective Date and ending on December 31, 2014 and (y) 3.25 to 1.00 thereafter; (iii) each Person which the Borrower shall request to make an Incremental Loan ~~Commitments~~ shall be subject to the prior consent of the Administrative Agent (such consent not to be unreasonably withheld); (iv) each tranche of Incremental Loans shall be in an aggregate principal amount that is not less than $10,000,000 (or such lesser amount that represents all of the remaining availability under the limits set forth in clause (i) above); (v) except for Incremental Loans requested under clause (x) above that are ~~established~~Tranche A Term Loans, ~~from one~~ the Incremental Loan Maturity Date of the Incremental Loans of any Series shall not be earlier than the Tranche B Term Loan Maturity Date (except that the scheduled final maturity of such Incremental Loans may be accelerated pursuant to 73), and the Average Life to Maturity of the Incremental Loans shall be greater than the Average Life to Maturity of the Tranche B Term Loans (except that Incremental Loans shall be entitled to participate, to the extent provided in 82, in mandatory prepayments); and (vi) except as otherwise provided in 243, the Borrower shall within 30 days after the date a Person becomes a TV/Radio Subsidiary cause the Collateral and Guarantee Requirement to be satisfied with respect to such TV/Radio Subsidiary. Such notice shall specify (w) the amount of such Incremental Loans and the Person or ~~more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Persons to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent)Loans, (iix) the date on which such Incremental Loans shall be made, (y) the Incremental Loan ~~Commitments are requested to become effective~~ Maturity Date and the Incremental Loan Principal Payment Dates (~~which shall not be less than 10 Business Days nor more than 60 days after the date of~~ if any) for such ~~notice),~~ Incremental Loans and (~~iii~~z) ~~whether~~ the Applicable Margin that will apply to such Incremental ~~Loan Commitments are commitments~~ Loans and (if applicable) the rate of the commitment fee, if any, payable by the Borrower in respect of the commitment to make ~~additional Loans or commitments to make term loans~~ such Incremental Loans, together with ~~terms different from~~ such other information reasonably requested by the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders Administrative Agent in connection therewith. ~~The Borrower and each~~ Amounts prepaid in respect of Incremental ~~Term~~ Loans may not be reborrowed. Notwithstanding anything herein to the contrary, no Lender shall ~~execute~~ be obligated to provide any Incremental Loans. Any Person or Persons shall become an Incremental Lender hereunder upon execution and ~~deliver~~ delivery to the Administrative Agent of an Incremental Loan ~~Assumption Agreement and such other documentation as~~ Amendment (in form reasonable satisfactory to the Administrative ~~Agent shall reasonably specify to evidence~~ Agent) by such Person or Persons, the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms~~ Borrower and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other LoansAgent; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to that the effectiveness of ~~each~~ such Incremental Loan ~~Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement~~ Amendment shall be ~~deemed amended~~ subject to the ~~extent (but only to the extent) necessary to reflect the existence and terms~~ satisfaction of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date each of ~~such effectiveness,~~ the conditions set forth in this Section ~~4.02~~ and Sections 201 and 194 (it being understood that all references to “date of such Borrowing” or similar language in 190 shall be ~~satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary~~ deemed to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, refer to the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ effective date of such Incremental Loan Amendment) and such other conditions as the parties to such Incremental Loan Amendment shall agree. The Incremental Loans made pursuant to the same Incremental Loan Amendment shall be ~~ratably increased by the aggregate principal amount~~ deemed to be a separate series (each a “Series”) of ~~such~~ Incremental Loans ~~and shall be further increased~~ for all ~~Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~purposes of this Agreement.

Appears in 1 contract

Samples: Credit Agreement (Sinclair Broadcast Group Inc)

Incremental Loans. In addition to Borrowings of Syndicated Revolving Credit Loans pursuant to paragraph (a) ~~The Borrower may~~above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Company may request that any one or more of the Lenders or, at the option of the Company, other financial institutions or funds selected by the Company offer to enter into commitments to make additional revolving Incremental ~~Loan Commitments~~Loans, in Dollars, under this paragraph (b) to the Borrowers. In the event that one or more of the Lenders or such other financial institutions or funds offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or funds and the Company agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by the Borrowers in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Loans under this Agreement in an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount at the time such~~ amount of their respective Incremental Loan Commitments ~~are established~~(and such financial institutions shall become “Incremental Lenders” hereunder). The Incremental Loans to be made pursuant to any such agreement between the Company in response to any such request by the Company shall be deemed to be a separate “Series” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, ~~from~~ (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) immediately after giving effect to the establishment of each Incremental Loan Commitment, the sum of the Net Commitment Increase Amount plus the Net Incremental Increase Amount plus the aggregate undrawn amount of all Secured LOCs shall not exceed $300,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, participation, commitment, arrangement, upfront and similar fees, commitment reduction schedule (if any) and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Lenders of such Series and the Company, provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Guaranteed Obligation, (ii) the maturity for Incremental Loans shall not be earlier than the Later Commitment Termination Date and may be later than the Later Commitment Termination Date to the extent so agreed by the Company and such Incremental Lenders and (iii) the weighted average-life-to-maturity for each Series of Incremental Loans shall not be shorter than the longest remaining Revolving Credit Availability Period. Following the acceptance by the Company of the offers made by any one or more Lenders to make any Series of Incremental ~~Term Lenders~~ Loans pursuant to the foregoing provisions of this paragraph (~~which may include any existing~~ b), each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the terms and ~~which must be Eligible Assignees) willing~~ conditions of this Agreement, to ~~provide~~ make such Incremental ~~Loan Commitments~~ Loans to the Borrowers during the period from and including the date of such acceptance to and including the commitment termination date specified in ~~their own discretion. Such notice shall set forth (i)~~ the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental ~~Loans shall be ratably increased by the aggregate principal amount~~ Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Borrowers may convert Incremental Loans ~~and shall be further increased for all Lenders on a pro rata basis to~~ of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.07) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the ~~extent necessary to avoid any reduction~~ same Type (as provided in ~~the amortization payments to which the Lenders were entitled before such recalculation~~Section 2.07).

Appears in 1 contract

Samples: Credit Agreement (Foster Wheeler Ag)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments for additional term loans in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term~~ Lenders (~~which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion~~other than an Ineligible Institution). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Initial Term Loans (an “Initial Term Loan Increase”) or commitments to make term loans with terms different from the Loans (“~~Other~~ Incremental Loans”). Incremental Loans shall be (A) secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, (B) secured by the Collateral on a junior basis to the Liens securing the Initial Term Loans or (C) unsecured. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or an Approved Fund of a Lender). The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required LendersIn any event, (i) the final maturity date of any ~~Other~~ Incremental Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of the Initial Term Loans (which, for purposes hereof, shall be calculated as though no prepayments which reduce amortization on the Initial Term Loans have been made), (iii) such Incremental Loans may participate on a pro rata basis or less than a pro rata basis in any mandatory prepayments of the Initial Term Loans hereunder, (iv) with respect to any Incremental Loans secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans. , the All‑In Yield applicable to such Incremental Loans shall not be greater than the applicable All‑In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus 50 basis points per annum unless the Applicable Margin (ctogether with, as provided in the proviso below, the LIBO Rate or Alternate Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All‑In Yield under this Agreement on the Initial Term Loans to equal the All‑In Yield then applicable to the Incremental Loans, minus 50 basis points per annum; provided that any increase in All‑In Yield on the Initial Term Loans due to the application of a LIBO Rate or Alternate Base Rate floor on any Incremental Loan shall be effected solely through an increase in (or implementation of, as applicable) the LIBO Rate or Alternate Base Rate floor applicable to such Initial Term Loans, (v) such Incremental Loans shall not be subject to any Guarantee by any Person other than a Loan Party, (vi) such Incremental Loans shall not be secured by a Lien on any asset other than Collateral, (vii) unless such Incremental Loans are unsecured, such Incremental Loans shall be subject to the Intercreditor Agreement and other intercreditor arrangements reasonably acceptable to the Administrative Agent, and (viii) if the ~~initial yield on~~ covenants and events of default of any such ~~Other~~ Indebtedness (excluding, for the avoidance of doubt, interest rates, interest margins, rate floors, fees, funding discounts, original issue discounts and voluntary prepayment or voluntary redemption premiums and terms) (when taken as a whole) are materially more favorable to the lenders or holders providing such Incremental Loans than those applicable to the Initial Term Loans (when taken as ~~determined by~~ a whole) (other than covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Incremental Loans), the Initial Term Loans will be modified to reflect such more favorable terms (taken as a whole) and the Borrower and the Administrative Agent ~~to be equal to~~ may amend this Agreement for such purpose without the ~~sum~~ consent of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingother party hereto. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.02 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans shall have the same guarantees as, and to the extent secured, be secured by Liens on the same assets as those assets that secure the Initial Term Loans. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.23 unless (i) on the date of such effectiveness, (x) the ~~conditions~~ representations and warranties set forth in ~~Section 4.02~~ Article III and in each other Loan Document shall be ~~satisfied~~true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) all fees and expenses owing to the Administrative Agent and the Incremental Lenders in respect of such increase shall have been paid, and (iii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and reasonably consistent with those delivered on the Closing Date under Section 4.01. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all ~~Incremental Loans (other than Other Loans)~~Initial Term Loan Increases, when originally made, are included in each Borrowing of outstanding Initial Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each ~~Incremental Loan~~Initial Term Loan Increase, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any ~~Incremental~~ Initial Term Loan Increase is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, ~~to the extent~~ in connection with any ~~Incremental Loans are not Other Loans,~~ Initial Term Loan Increase the scheduled amortization payments under Section ~~2.09~~ 2.10(a) required to be made after the making of such ~~Incremental Loans~~ Initial Term Loan Increase shall be ratably increased by the aggregate principal amount of such ~~Incremental~~ Initial Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Office Depot Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be identical to those of the Loans except as otherwise set forth ~~herein~~herein or in the Incremental Loan Assumption Agreement. Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. , (ciii) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1A) the average life to maturity of such Other Loans and (2B) four) exceeds the ~~applicable margin~~ Applicable Margin then in effect for ~~Eurocurrency~~ Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the ~~applicable margin~~ Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) the other terms and documentation in respect of such Other Loans~~; provided that~~, to the extent ~~any portion of~~ not consistent with the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans~~Term Facility, ~~such floor~~ shall ~~only~~ be ~~included in the calculation of the Yield Differential~~ reasonably satisfactory to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.22 unless (i) on the date of such effectiveness, the conditions set forth in ~~Section 4.02~~ Sections 4.01(b) and 4.01(c) shall be ~~satisfied~~satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Borrower’s Total Secured Leverage Ratio shall not exceed 2.00:1.00 and the aggregate Value of the Fixed Asset Collateral after giving effect to the Concentration Limits shall not be less than the Required Collateral Amount, in each case on a pro forma basis after giving effect to such Incremental Loan Commitment, the Incurrence of the Incremental Loans thereunder and the use of proceeds thereof, and the Administrative Agent shall have received a certificate to that effect showing such calculations in reasonable detail dated such date and executed by a Responsible Officer of the Borrower, (iii) all fees and expenses owing to the Administrative Agent and the Lenders in respect of such increase shall have been paid and (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Supervalu Inc)

Incremental Loans. (ai) ~~The Borrower may~~One or more Borrowers may request additional term loans to be made on the Incremental Funding Date (the “Incremental Loans”) by (1) one or more of the current Lenders agreeing to provide an Incremental Loan (any current Lender which so provides shall be referred to as an “Increasing Lender”) or (2) one or more new lenders (each a “New Lender”) joining this Agreement and providing an Incremental Loan, ~~by written notice~~ as applicable, hereunder, subject to the ~~Administrative Agent~~ following terms and conditions: (A) reserved; (B) the Borrowers shall have a pro forma Total Funded Debt to EBITDA Ratio for the 12-month period then ended of less than 5.75:1.00; provided, that for such foregoing calculation, “EBITDA” shall include, at Borrowers’ option, the projected EBITDA generated from ~~time to time, request Incremental Loan Commitments,~~ Vessel 17 in an amount ~~not~~ equal to ~~exceed~~ $3,834,000; provided, further, (x) if the First Lien Credit Agreement permits First Lien Incremental Term Loans and the proceeds thereof are to be used for the acquisition and construction costs and expenses in accordance with Section 5.15, then the Borrowers may only borrow First Lien Incremental Term Loans, so long as the Incremental ~~Amount~~ Loans are at least thirty-six percent (36%) of the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the aggregate amount of the Incremental ~~Loan Commitments being requested~~ Loans and the First Lien Incremental Term Loans; and (~~which shall~~ y) if the proceeds of First Lien Incremental Loans are to be used for any purpose other than as set forth in ~~minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~foregoing clause (x), ~~(ii)~~ then the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower Borrowers may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become only borrow First Lien Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation Loans, so long as the ~~Administrative Agent shall reasonably specify to evidence~~ Incremental Loans are at least twenty percent (20%) of the ~~Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ aggregate amount of the Incremental Loans and the First Lien Incremental Term Loans; provided, however, if the Lenders hereunder decline their right to provide the required portion of Incremental Loans hereunder, then the Borrowers may borrow First Lien Incremental Term Loans without borrowing any Incremental Loans; (~~excluding amortization, maturity, pricing, fees and rate floors~~C) no current Lender shall be ~~identical~~ obligated to ~~those~~ provide an Incremental Loan, and any agreement to provide an Incremental Loan by any current Lender shall be in the sole discretion of such current Lender; (D) Borrowers may not request the addition of a New Lender unless (and then only to the extent that) there is insufficient participation on behalf of the existing Lenders in the Incremental Loans being requested by Borrowers, evidenced by a written notice delivered to the Borrowers of such applicable existing Lender’s election not to provide an Incremental Loan; (E) the aggregate original principal amount of all Incremental Loans shall not exceed US$22,500,000 (or US$32,500,000 in the event that the First Lien Credit Agreement has not been amended for any reason on or prior to the Incremental Funding Date, by the parties thereto to permit the borrowers under the First Lien Credit Agreement to borrow additional First Lien Term Loans in the amount of US$10,000,000); (F) subject to the Intercreditor Agreement, the Incremental Loans shall be on terms and conditions (including pricing terms) not less favorable than that provided to the Lenders that have made Term Loans; (G) Borrowers may not request the Incremental Loans under this Section 1.1(f) more than two (2) times during the period commencing on the Closing Date and ending on the second (2nd) anniversary of the Closing Date; (H) Borrowers shall deliver to Agent on or before the Incremental Funding Date the following documents in form and substance satisfactory to Agent: (1) an updated Annex I to be attached hereto, reflecting each applicable Lender’s Incremental Commitment, (2) certifications of their corporate secretaries with attached resolutions certifying that the Incremental Loans have been approved by such Borrowers, (3) certificate dated as of the Incremental Funding Date certifying that no Default or Event of Default shall have occurred and be continuing and certifying that the representations and warranties made by each Borrower herein and in the Loan Documents are true and complete in all material respects (unless already qualified by materiality in such specific provision) with the same force and effect as if made on and as of such date (except to the extent any such representation or warranty expressly relates only to any earlier and/or specified date), (4) executed agreements, instruments and information (including supplements or modifications to this Agreement and/or the Loan Documents executed by Borrowers as ~~otherwise set forth herein. Without~~ Agent reasonably deems necessary in order to document the Incremental Loans and to protect, preserve and continue the perfection and priority of the liens, security interests, rights and remedies of Agent and Lenders hereunder and under the Loan Documents in light of the Incremental Loans, and (5) an opinion of counsel in form and substance reasonably satisfactory to Agent which shall cover such matters related to the Incremental Loans as Agent may reasonably require and each Borrower hereby authorizes and directs such counsel to deliver such opinions to Agent and Lenders; (I) any New Lender shall be subject to the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans.Agent; (cJ) if each New Lender shall execute a lender joinder in substantially the ~~initial yield on~~ form of Exhibit 1.1(f)(i)(G) pursuant to which such ~~Other Loans (as determined by the Administrative Agent~~ New Lender shall join and become a party to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time this Agreement and the ~~“LIBOR floor” applicable to the initial Loans, and,~~ Loan Documents with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental ~~Loan~~ Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in such lender joinder; (K) the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall rank pari passu in right of payment and of security with the Term Loans and, except with regard to pricing and as set forth in this Section 1.1(f), shall be ~~ratably increased~~ treated substantially the same as the Term Loans (including with respect to mandatory and voluntary repayments and voting rights); and (L) on the Incremental Funding Date, Borrowers shall pay all reasonable costs and expenses incurred by Agent and by each Increasing Lender and New Lender in connection with the ~~aggregate principal amount~~ negotiations regarding, and the preparation, negotiation, execution and delivery of all agreements and instruments executed and delivered by any of Agent, Borrowers and/or Increasing Lenders and New Lenders in connection with, such increase (including all fees for any supplemental or additional public filings of any Loan Documents necessary to protect, preserve and continue the perfection and priority of the liens, security interests, rights and remedies of Agent and Lenders hereunder and under the Loan Documents in light of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationincrease).

Appears in 1 contract

Samples: Term Loan Credit Agreement (Rand Logistics, Inc.)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments for additional term loans in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term~~ Lenders (~~which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion~~other than an Ineligible Institution). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Initial Term Loans (an “Initial Term Loan Increase”) or commitments to make term loans with terms different from the Loans (“~~Other~~ Incremental Loans”). Incremental Loans shall be (A) secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, (B) secured by the Collateral on a junior basis to the Liens securing the Initial Term Loans or (C) unsecured. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or an Approved Fund of a Lender). The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required LendersIn any event, (i) the final maturity date of any ~~Other~~ Incremental Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of the Initial Term Loans (which, for purposes hereof, shall be calculated as though no prepayments which reduce amortization on the Initial Term Loans have been made), (iii) such Incremental Loans may participate on a pro rata basis or less than a pro rata basis in any mandatory prepayments of the Initial Term Loans hereunder, (iv) with respect to any Incremental Loans secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans. , the All-In Yield applicable to such Incremental Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to Initial Term Loans, plus 50 basis points per annum unless the Applicable Margin (ctogether with, as provided in the proviso below, the LIBO Rate or Alternate Base Rate floor) with respect to the Initial Term Loans is increased so as to cause the then applicable All-In Yield under this Agreement on the Initial Term Loans to equal the All-In Yield then applicable to the Incremental Loans, minus 50 basis points per annum; provided that any increase in All-In Yield on the Initial Term Loans due to the application of a LIBO Rate or Alternate Base Rate floor on any Incremental Loan shall be effected solely through an increase in (or implementation of, as applicable) the LIBO Rate or Alternate Base Rate floor applicable to such Initial Term Loans, (v) such Incremental Loans shall not be subject to any Guarantee by any Person other than a Loan Party, (vi) such Incremental Loans shall not be secured by a Lien on any asset other than Collateral, (vii) unless such Incremental Loans are unsecured, such Incremental Loans shall be subject to the Intercreditor Agreement and other intercreditor arrangements reasonably acceptable to the Administrative Agent, and (viii) if the ~~initial yield on~~ covenants and events of default of any such ~~Other~~ Indebtedness (excluding, for the avoidance of doubt, interest rates, interest margins, rate floors, fees, funding discounts, original issue discounts and voluntary prepayment or voluntary redemption premiums and terms) (when taken as a whole) are materially more favorable to the lenders or holders providing such Incremental Loans than those applicable to the Initial Term Loans (when taken as ~~determined by~~ a whole) (other than covenants or other provisions applicable only to periods after the Latest Maturity Date at the time of incurrence, issuance or obtainment of such Incremental Loans), the Initial Term Loans will be modified to reflect such more favorable terms (taken as a whole) and the Borrower and the Administrative Agent ~~to be equal to~~ may amend this Agreement for such purpose without the ~~sum~~ consent of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingother party hereto. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.02 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans shall have the same guarantees as, and to the extent secured, be secured by Liens on the same assets as those assets that secure the Initial Term Loans. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.23 unless (i) on the date of such effectiveness, (x) the ~~conditions~~ representations and warranties set forth in ~~Section 4.02~~ Article III and in each other Loan Document shall be ~~satisfied~~true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) all fees and expenses owing to the Administrative Agent and the Incremental Lenders in respect of such increase shall have been paid, and (iii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and reasonably consistent with those delivered on the Closing Date under Section 4.01. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all ~~Incremental Loans (other than Other Loans)~~Initial Term Loan Increases, when originally made, are included in each Borrowing of outstanding Initial Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each ~~Incremental Loan~~Initial Term Loan Increase, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any ~~Incremental~~ Initial Term Loan Increase is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, ~~to the extent~~ in connection with any ~~Incremental Loans are not Other Loans,~~ Initial Term Loan Increase the scheduled amortization payments under Section ~~2.09~~ 2.10(a) required to be made after the making of such ~~Incremental Loans~~ Initial Term Loan Increase shall be ratably increased by the aggregate principal amount of such ~~Incremental~~ Initial Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Office Depot Inc)

Incremental Loans. (a) ~~The~~ After the Amendment No. 5 Effective Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request increases of any-then existing Tranche of Revolving Commitments (each increase in Commitment pursuant to this sentence, ~~request Incremental Loan Commitments~~a “Supplemental Revolving Commitment”) hereunder, in an aggregate amount for all such Supplemental Revolving Commitments not ~~to exceed the Incremental Amount~~ in excess of, at the time the respective Supplemental Revolving Commitments become effective, the Maximum Incremental Facilities Amount after giving effect to Amendment No. 5 and the establishment of the Tranche B Term Loans. Each such ~~Incremental Loan~~ notice relating to Supplemental Revolving Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the ~~Incremental Loan~~ Borrower proposes that the Supplemental Revolving Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000~~ date not less than 10 Business Days (or ~~equal to the remaining Incremental Amount or in each case~~ such ~~lesser amount approved by~~ shorter period as the Administrative ~~Agent), (ii~~Agent may agree) after the date on which such ~~Incremental Loan~~ notice is delivered to the Administrative Agent and (ii) if applicable, the Tranche (or Tranches) of Revolving Commitments ~~are requested~~ to ~~become effective~~ be so increased (~~which shall not be less than 10 Business Days nor~~ and, if more than ~~60 days after~~ one Tranche of Revolving Commitments will be increased, the ~~date~~ amount of the aggregate Supplemental Revolving Commitment to be allocated to each such ~~notice~~Tranche); provided, that (x) any Lender offered or approached to provide all or a portion of any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (~~iii~~y) ~~whether~~ any Person that the Borrower proposes to become a New Lender, if such ~~Incremental Loan Commitments are commitments~~ Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to ~~make additional~~ the Administrative Agent, and to the extent its consent would be required to assign Loans ~~or commitments~~ to ~~make term loans with terms different from~~ any such Eligible Assignee, each Issuing Lender and the ~~Loans (“Other Loans”)~~Swingline Lender. (b) ~~The Borrower may seek Incremental Loan~~ Such Supplemental Revolving Commitments ~~from existing Lenders (each of which~~ shall ~~be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will~~ become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation effective as ~~the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ of the ~~Incremental Loans (excluding amortization~~applicable Increased Amount Date; provided, ~~maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders,~~ that: (i) no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Supplemental Revolving Commitments and the ~~final maturity date~~ making of any ~~Other~~ New Loans ~~shall be no earlier than~~ pursuant thereto and any transaction consummated in connection therewith subject to the ~~Maturity Date~~Permitted Acquisition Provisions (as defined below) and the Limited Condition Acquisition Provision, ~~and~~ in connection with any acquisition or investment being made with the proceeds thereof; (ii) the ~~average life to maturity~~ proceeds of any Supplemental Revolving Commitments shall be used, at the discretion of the ~~Other Loans shall be no shorter than the average life to maturity of the Loans.~~Borrower, for any purpose not prohibited by this Agreement; (~~c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x~~iii) the ~~margin above~~ Supplemental Revolving Commitments shall benefit, ratably with the ~~Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making~~ other Commitments in the same ~~receive a fee directly or indirectly~~ Tranche, from the ~~Borrower or any Subsidiary for doing so (~~guarantees under the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans Guarantee and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor Collateral Agreement and shall only be ~~included in~~ guaranteed by the ~~calculation of~~ Guarantors; (iv) the ~~Yield Differential to~~ Supplemental Revolving Commitments shall be secured by the ~~extent such floor is greater than~~ Liens on the ~~higher of~~ Collateral on a pari passu basis with the ~~Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time~~ Liens securing all other Obligations and the ~~“LIBOR floor” applicable to the initial Loans, and,~~ Obligations with respect to ~~such excess,~~ the ~~“LIBOR floor” applicable to~~ Supplemental Revolving Commitments shall have the ~~outstanding Loans shall be increased to an amount not to exceed~~ same payment priority as the ~~“LIBOR floor” applicable to such Other Loans prior to any increase~~ other Obligations in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.same Tranche; (dv) ~~Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness,~~ the conditions set forth in Section ~~4.02~~ 2.34 shall be satisfied, if applicable; (vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the same terms as the Tranche being so increased (other than with respect to upfront fees) and pursuant to the same documentation applicable to such Tranche; (vii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and (viii) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Security Documents as may be reasonably necessary or advisable to ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any Restricted Subsidiary to finance, in whole or in part, a Permitted Acquisition, then to the extent so required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) 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 interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the 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 (B) there need not be a condition to borrowing that there be no Default or Event of Default other than there shall be no Event of Default under Sections 8.1(a) or (f) after giving effect to such incurrence (“Permitted Acquisition Provisions”). (c) On any date on which any Incremental Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Commitment. (d) For purposes of this Agreement, any New Loans or Incremental Commitments shall be deemed to be Revolving Loans or Revolving Commitments, respectively. Each 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 opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25. (e) ~~Each~~ Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the ~~parties~~ Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto ~~hereby agrees that~~ as Exhibit L-1 (the ~~Administrative Agent may~~“Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in ~~consultation with the Borrower~~each case, ~~take any and all action~~ such other form as may be reasonably ~~necessary~~ acceptable to ~~ensure that~~ the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all ~~Incremental Loans~~ intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments of such increased Tranche. (~~other than Other~~ f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender providing a portion of such Supplemental Revolving Commitment, and each such New 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, Swingline Loans), ~~when originally made~~Local Loans, ~~are included~~ Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each ~~Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring~~ Lender (including each ~~outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing~~ such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of ~~each Incremental Loan~~such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or ~~by allocating a portion~~ prior to the effectiveness of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion~~ such Supplemental Revolving Commitment be prepaid from the proceeds of ~~Eurocurrency~~ additional Revolving Loans ~~to ABR Loans required by the preceding sentence~~ made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be ~~subject to~~ accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation2.11.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Revlon Consumer Products Corp)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent and the Person appointed by the Borrower to arrange an incremental Facility (such Person (who (i) may be the Administrative Agent, if it so agrees, or (ii) any other Person appointed by the Borrower after consultation with the Administrative Agent), the “Incremental Arranger”) from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount at (in the ~~time such~~ case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available). The Administrative Agent; provided that Incremental Loan Commitments ~~are established, from one~~ may be incurred in the Available Currency or ~~more~~ an alternative currency pursuant to procedures and on terms to be agreed with the applicable Incremental ~~Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ Arranger. The Incremental Arranger shall promptly deliver a copy of such notice to ~~provide such Incremental Loan Commitments in their own discretion~~each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Administrative AgentIncremental Arranger in its reasonable discretion), or such lesser amount equal to the ~~remaining~~ Incremental Loan Amount ~~or in each case~~ at such ~~lesser amount approved by the Administrative Agent~~time), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days ~~nor more than 60 days~~ (or such shorter period as agreed by the Incremental Arranger) after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make ~~term loans~~ Loans with terms different from ~~the~~ such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject only to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Loan Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Loan Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.existing

Appears in 1 contract

Samples: Credit Agreement

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The terms and provisions of the Incremental Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be identical to those of the Loans except as otherwise set forth ~~herein~~herein or in the Incremental Loan Assumption Agreement. Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average life to maturity of the Other Loans shall be no shorter than the remaining average life to maturity of the Loans. , (ciii) if the initial yield on such Other Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (taking into account any interest rate floors with respect to such Other Loans) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1A) the average life to maturity of such Other Loans and (2B) four) exceeds the ~~applicable margin~~ Applicable Margin then in effect for ~~Eurocurrency~~ Eurodollar Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the ~~applicable margin~~ Applicable Margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans and (iv) the other terms and documentation in respect of such Other Loans~~; provided that~~, to the extent ~~any portion of~~ not consistent with the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans~~Term Facility, ~~such floor~~ shall ~~only~~ be ~~included in the calculation of the Yield Differential~~ reasonably satisfactory to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Incremental Loans and Other Loans shall have the same guarantees as, and be secured on a pari passu basis with, the Loans. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.22 unless (i) on the date of such effectiveness, (x) the ~~conditions~~ representations and warranties set forth in ~~Section 4.02~~ Article III and in each other Loan Document shall be ~~satisfied~~true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects to the extent qualified by materiality or Material Adverse Effect) on and as of such earlier date and (y) at the time of and immediately after the giving effect to the Borrowing of Incremental Loans, no Default or Event of Default shall have occurred and be continuing, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer of the Borrower, (ii) the Borrower’s Total Secured Leverage Ratio shall not exceed 2.50:1.00 on a pro forma basis after giving effect to such Incremental Loan Commitment, the incurrence of the Incremental Loans thereunder the use of proceeds thereof and the Administrative Agent shall have received a certificate to that effect showing such calculations in reasonable detail dated such date and executed by a Responsible Officer of the Borrower, (iii) all fees and expenses owing to the Administrative Agent and the Lenders in respect of such increase shall have been paid, (iv) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01 and (v) to the extent reasonably necessary to maintain the continuing priority of the Lien of the Mortgages on the Real Estate Collateral Properties as security for the Obligations, as determined by the Administrative Agent in its reasonable discretion, (x) the applicable Loan Party to any Mortgages shall have entered into, and delivered to the Administrative Agent, at the direction and in the sole discretion of the Administrative Agent a mortgage modification or new Mortgage in proper form for recording in the relevant jurisdiction and in a form reasonably satisfactory to the Administrative Agent, (y) the Borrower shall have caused to be delivered to the Administrative Agent for the benefit of the Lenders an endorsement to the title insurance policy, date down(s) or other evidence reasonably satisfactory to the Administrative Agent insuring that the priority of the Lien of such Mortgages as security for the Obligations has not changed and confirming and/or insuring that since the issuance of the title insurance policy there has been no change in the condition of title and there are no intervening liens or encumbrances that may then or thereafter take priority over the Lien of such Mortgages (other than Permitted Encumbrances) and (z) the Borrower shall have delivered, at the request of the Administrative Agent, to the Administrative Agent and/or all other relevant third parties all other items reasonably necessary to maintain the continuing priority of the Lien of such Mortgages as security for the Obligations. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Supervalu Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request (but, without limiting the obligations of any Incremental ~~Loan Commitments~~Lender set forth in any Incremental Assumption Agreement, no Lender shall have an obligation to provide) Incremental Commitments in an amount not to exceed the Incremental Loan Amount in effect at ~~the time~~ such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretiontime. Such notice shall set forth (i) the amount of the Incremental ~~Loan~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental ~~Loan~~ Commitments are requested to become effective (which shall ~~not~~ not, unless otherwise agreed to by the Administrative Agent, be less than 10 five Business Days nor more than 60 days after the date of such notice), ) and (iii) whether such Incremental ~~Loan~~ Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“~~Other~~ Specified Incremental Loans”). (b) The Borrower may seek Incremental ~~Loan~~ Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and~~ and, subject to the Administrative Agent’s consent (not to be unreasonably withheld), additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental ~~Loan~~ Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental ~~Loan~~ Commitment of each Incremental ~~Term~~ Lender. ~~The~~ Each Incremental Assumption Agreement shall specify the terms ~~and provisions~~ of the Incremental Loans to be made thereunder; provided that, (~~excluding amortization, maturity, pricing, fees and rate floors~~i) ~~shall be identical to those of the Loans except as otherwise set forth herein. Without~~ without the prior written consent of the Required Lenders, (iA) the final maturity date of any ~~Other~~ Specified Incremental Loans shall be no earlier than the Latest Maturity ~~Date~~Date in effect at the time the Incremental Commitments with respect to such Specified Incremental Loans become effective, ~~and~~ (iiB) the weighted average life to maturity of ~~the Other~~ any Specified Incremental Loans shall be no shorter than the remaining weighted average life to maturity of any other Class of Loans, (C) the ~~Loans. (c)~~ interest rate margins applicable to any Incremental Loan will be determined by the Borrower and the Incremental Lenders; provided that in the event that an Incremental Commitment with respect to Specified Incremental Loans secured on a pari passu basis with the Term Loans becomes effective prior to the date that is 18 months after the Closing Date, if the initial yield on such ~~Other~~ Specified Incremental Loans (as reasonably determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such ~~Other~~ Specified Incremental Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Specified Incremental Loans on the date such Specified Incremental Loans are made would exceed the Adjusted LIBO Rate that would be in effect for a three-month Interest Period commencing on such date) and (y) if such ~~Other~~ Specified Incremental Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Parent, the Borrower or any Subsidiary for doing so (except for arrangement fees, structuring fees or underwriting or similar fees not generally paid to Lenders in connection with such loans) (the amount of such discount or fee, expressed as a percentage of the ~~Other~~ Incremental Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1A) the weighted average life to maturity of such ~~Other~~ Incremental Loans and (2B) four) exceeds ~~the applicable margin then in effect for Eurocurrency Loans~~ by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”~~), then~~ ) the ~~applicable~~ sum of (1) the margin then in effect for Eurocurrency Loans of any Class (which shall be the sum of the Applicable Percentage then in effect for such Eurocurrency Loans of such Class increased by the amount that any “LIBOR floor” applicable to such Eurocurrency Loans of such Class on such date would exceed the Adjusted LIBO Rate (without giving effect to the proviso to the definition of such term) that would be in effect for a three-month Interest Period commencing on such date) plus (2) the amount of OID initially paid in respect of the Loans of such Class divided by four, then the Applicable Percentage for Loans of each affected Class shall automatically be increased by the Incremental Yield ~~Differential~~Differential for such Class, effective upon the making of the ~~Other~~ Specified Incremental Loans~~; provided~~ , (D) no Default or Event of Default shall exist or would exist after giving effect thereto, (E) such Incremental Loans are not at any time guaranteed by any Subsidiaries other than Subsidiaries that are Guarantors, (F) the Incremental Loans shall rank pari passu or junior in right of security to the Obligations or shall be unsecured, subject, in the case of junior secured Incremental Loans, to customary intercreditor arrangements reasonably satisfactory to the Administrative Agent and (G) the Incremental Loans shall participate in prepayments pursuant to Section 2.12 and 2.13 on no greater than a pari passu basis with the Term Loans and (ii) all terms and documentation with respect to any Incremental Loans which differ from those with respect to the Term Loans shall be reasonably satisfactory to the Administrative Agent, except as set forth in clauses (i)(A) through (G) above (it being understood that, to the extent that any ~~portion~~ financial maintenance covenant or call protection is added for the benefit of any Incremental Lenders, no consent shall be required from the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in~~ Administrative Agent or the ~~calculation of the Yield Differential~~ Required Lenders to the extent that such ~~floor~~ financial maintenance covenant or call protection is ~~greater than~~ (1) also added for the ~~higher~~ benefit of any existing Term Loans or (2) only applicable after the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingLatest Maturity Date). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan~~ Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental ~~Loan~~ Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental ~~Loan~~ Commitment and the Incremental Loans evidenced ~~thereby,~~ thereby and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. Notwithstanding anything to the contrary herein, such amendment shall become effective without any further consent of any other party to the Loan Documents. (dc) Notwithstanding the foregoing, no Incremental ~~Loan~~ Commitment shall become effective under this Section ~~2.04~~ 2.22 unless (i) on the date of such effectiveness, the conditions set forth in ~~Section 4.02~~ paragraph (b) of Article IV shall be ~~satisfied~~satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer and (ii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and reasonably consistent with those delivered on the Closing Date under Article IV (other than changes reasonably satisfactory to the Administrative Agent to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion). (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than ~~Other~~ Specified Incremental Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental ~~Loan~~ Assumption Agreement. In addition, to the extent any Incremental Loans are not ~~Other~~ Specified Incremental Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationLoans.

Appears in 1 contract

Samples: Credit Agreement (Ply Gem Holdings Inc)

Appears in 1 contract

Samples: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time,~~ request ~~Incremental~~ the establishment of one or more new term loans (the “New Term Loan Commitments”) or the increase of the Revolving Commitments hereunder, in an aggregate amount ~~not to exceed the Incremental Amount at the time~~ for all such ~~Incremental~~ New Term Loan Commitments ~~are established, from one or more Incremental Term Lenders (which may include any existing Lender~~ and ~~which must be Eligible Assignees) willing to provide such Incremental Loan~~ increases of the Revolving Commitments not in ~~their own discretion. Such notice shall set forth (i) the amount~~ excess of the Incremental Cap (subject to the Limited Condition Acquisition Proviso in connection with any Permitted Acquisition or permitted Investment that constitutes an acquisition (other than an intercompany Investment)). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments ~~being requested (~~or increase of the Revolving Commitments shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental~~ notice is delivered to the Administrative Agent or such shorter period as the Administrative Agent may approve; provided that (i) any Lender offered or approached to provide all or a portion of any New Term Loan Commitments ~~are requested~~ or increase of the Revolving Commitments may elect or decline, in its sole discretion, to provide such New Term Loan Commitments or increase of the Revolving Commitments and (ii) any New Term Loan Commitments or increases to the Revolving Commitments established pursuant to this Section 2.25 will count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Cash-Capped Incremental Facilities (to the extent permitted by the pro forma calculation of the Consolidated Total Leverage Ratio required prior to the incurrence of such Ratio-Based Incremental Facility). Such New Term Loan Commitments or increase of the Revolving Commitments shall become effective as of such Increased Amount Date; provided that subject to the Limited Condition Acquisition Proviso, (~~which~~ i) the conditions set forth in Section 5.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such New Term Loan Commitments and to the making of any Tranche of New Term Loans pursuant thereto or to such increase of the Revolving Commitments and after giving effect to any transaction consummated in connection therewith; (ii) the Borrower shall be in pro forma compliance with the financial covenant set forth in Section 7.1 as of the end of the most recently ended Test Period; (iii) the proceeds of any New Term Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions and Investments permitted under Section 7.8); (iv) the New Term Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guarantee and Collateral Agreement; (v) the New Term Loans shall share ratably or less favorably in any mandatory prepayments of the existing Term Loans; (vi) the maturity date of New Term Loans thereof shall not be ~~less~~ earlier than ~~10 Business Days nor~~ the Tranche B Term Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the Tranche B Term Loans; (vii) all terms and documentation with respect to any New Term Loans which differ from those with respect to the Tranche B Term Loans shall be reasonably satisfactory to the arranger of such Incremental Facility (except to the extent permitted by clause (vi) and, with respect to New Term Loans under the Tranche B Term Facility, clause (x) of this Section, and the last sentence of this paragraph) (it being understood that, to the extent that any terms are added for the benefit of the Lenders of any Incremental Facility, no consent shall be required from the Administrative Agent or any other Lenders to the extent that such term is (1) favorable to all Lenders and also added for the benefit of both the Tranche A Term Facility and the Tranche B Term Facility, as applicable, or (2) only applicable after the latest maturity of the Tranche A Term Facility and the Tranche B Term Facility), as applicable; (viii) such New Term Loans or New Term Loan Commitments or increase of the Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the arranger of such Incremental Facility and one or more New Lenders; (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by the arranger of such Incremental Facility in connection with any such transaction, including any supplements or amendments to the Security Documents providing for such New Term Loans to be secured thereby; (x) if the initial “spread” (for purposes of this Section 2.25, the “spread” with respect to any Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the New Term Loans incurred before the 18-month anniversary of the First Amendment Effective Date exceeds the spread then in effect with respect to the Tranche B Term Loans by more than ~~60 days after~~ 0.50%, the Applicable Margin relating to the existing Tranche B Term Loans shall be adjusted so that the spread relating to such New Term Loans does not exceed the spread applicable to the existing Tranche B Term Loans by more than 0.50%; provided that if the New Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche B 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 Margin) applicable to the Tranche B Term Loans shall be increased by such amount, (xi) the Borrower may appoint any Person to arrange such Incremental Facilities and provide such arranger any titles with respect to such Incremental Facilities as it deems appropriate and (xii) the Administrative Agent shall not be required to execute, accept or acknowledge any incremental joinder documentation. Any New Term Loans made on an Increased Amount Date that have terms and provisions that differ from those of the Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “Tranche”) of Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Term Loan shall be determined by the Borrower and the applicable lenders of New Term Loans (each, a “New Term Lender”) and shall be set forth in the applicable Joinder Agreement. Notwithstanding the foregoing, the conditions precedent to each such increase or New Term Facility shall be agreed to by the Lenders providing such increase or New Term Facility, as applicable, the arranger of such ~~notice~~increase or New Term Facility, as applicable, and the Borrower; provided that in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans are, substantially concurrently with the receipt thereof, 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, 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 Effective Date shall be (x) customary “specified representations” 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 interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the 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 (B) no Event of Default under Sections 8.01(a), ~~and~~ (~~iii~~f) ~~whether~~ or (g) would exist after giving effect to such ~~Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)~~incurrence. (b) ~~The Borrower may seek Incremental~~ On any Increased Amount Date on which any New Term Loan Commitments ~~from existing Lenders (each~~ or increase of ~~which shall be entitled to agree or decline to participate in its sole discretion) and additional banks~~the Revolving Commitments becomes effective, ~~financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver~~ subject to the ~~Administrative Agent~~ foregoing terms and conditions, each lender with a New Term Loan Commitment or an ~~Incremental~~ increase of the Revolving Commitments (each, a “New Lender”) shall become a Lender hereunder with respect to such New Term Loan ~~Assumption Agreement and~~ Commitment or such ~~other documentation~~ increase of the Revolving Commitments, as the ~~Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender.~~ case may be. (c) The terms and provisions of the ~~Incremental Loans (excluding amortization~~New Term Loan Commitments of any Tranche shall be, ~~maturity~~except as otherwise set forth in the relevant Joinder Agreement, ~~pricing, fees and rate floors) shall be~~ identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other applicable Term Loans and ~~(y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary~~ for ~~doing so (the amount~~ purposes of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption this Agreement, ~~this Agreement~~ any New Term Loans or New Term Loan Commitments shall be deemed ~~amended~~ to be Term Loans. Each Joinder Agreement may, without the ~~extent (but only~~ consent of any other Lenders, effect such amendments to ~~the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment~~ this Agreement and the ~~Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental~~ other Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action Documents as may be ~~reasonably~~ necessary ~~to ensure that all Incremental Loans (other than Other Loans)~~or appropriate, when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the ~~applicable Incremental Loan Assumption Agreement. In addition, to~~ opinion of the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making~~ arranger of such Incremental ~~Loans shall be ratably increased by~~ Facility, to effect the ~~aggregate principal amount~~ provisions of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationthis Section 2.25.

Appears in 1 contract

Samples: Credit Agreement (Wesco Aircraft Holdings, Inc)

Incremental Loans. (a) ~~The~~ In addition to the $400,000,000 in aggregate principal amount of 2018 Delayed Draw Tranche A Term Loans established on the Sixth Amendment Effective Date pursuant to the Sixth Amendment and, the $500,000,000 Revolving Commitment Increase established pursuant to the Eighth Amendment and the $424,723,767.26 in aggregate principal amount of 2022 Supplemental Tranche A Term Loans established on the Ninth Amendment Effective Date pursuant to the Ninth Amendment, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from~~ elect to request the establishment of one or more new term loans (each, a “New Term Loan Commitment”) or increases of existing Term Loans (each, a “Supplemental Term Loan Commitment”) or new revolving commitments (each, a “New Revolving Commitment”) (but no more than three tranches at any time ~~to time~~outstanding in the case of revolving commitments) or increases of existing Revolving Commitments (each, ~~request Incremental~~ a “Revolving Commitment Increase”; together with any New Term Loan Commitments, any Supplemental Term Loan Commitments and any Revolving Commitment Increase, the “New Loan Commitments”) hereunder, in an aggregate amount for all such New Loan Commitments not in excess of, at the time the respective New Loan Commitments become effective, (x) the Maximum Incremental Facility Amount and (y) an additional amount not to ~~exceed the Incremental Amount at the time such Incremental~~ exceed, together with (i) all other New Loan Commitments ~~are established~~established pursuant to this Section 2.25(a)(y) and (ii) Additional Obligations incurred pursuant to Section 7.2(p), ~~from one~~ the greater of $909,000,000 or ~~more Incremental Term Lenders~~ 100% of Consolidated EBITDA, as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1, in the aggregate. For purposes of determining compliance with the foregoing sentence of this Section 2.25(a), in the event that New Loan Commitments can be incurred under either clause (~~which~~ x) or (y) of such sentence, the Borrower shall, in its sole discretion, classify such New Loan Commitments (or any portion thereof) and may include ~~any existing Lender and which must be Eligible Assignees) willing to provide~~ the amount of such ~~Incremental~~ New Loan Commitments in ~~their own discretion~~one or both of such clauses; provided that, at the Borrower’s option, capacity to incur New Loan Commitments pursuant to clause (x) shall be deemed to be utilized prior to any utilization of clause (y) to establish New Loan Commitments. ~~Such~~ Each such notice shall ~~set forth~~ specify the date (ieach, an “Increased Amount Date”) on which the ~~amount of~~ Borrower proposes that the ~~Incremental~~ New Loan Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental~~ notice is delivered to the Administrative Agent; provided that any Lender offered or approached to provide all or a portion of any New Loan Commitments ~~are requested~~ may elect or decline, in its sole discretion, to ~~become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of~~ provide such ~~notice), and (iii) whether such Incremental~~ New Loan ~~Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)~~Commitments. (b) ~~The Borrower may seek Incremental~~ Such New Loan Commitments ~~from existing Lenders (each~~ shall become effective as of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, Increased Amount Date; provided that (i) no Default or Event of Default shall exist on such Increased Amount Date immediately after giving effect to such New Loan Commitments and the ~~final maturity~~ making of any New Loans pursuant thereto and any transaction consummated in connection therewith (or, in the case of an incurrence of New Loans necessary or advisable (as determined by the Borrower in good faith) for the consummation of a Limited Condition Acquisition, no Default or Event of Default exists as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into (or, if applicable, the date of ~~any Other Loans shall be no earlier than the Maturity Date, and~~ delivery of an irrevocable notice or declaration of such Limited Condition Acquisition)); (ii) the Borrower shall be in pro forma compliance with the financial covenantscovenant set forth in Section 7.1 as of the end of the most recently ended Test Period for which financial statements have been delivered pursuant to Section 6.1 at the effective time of such commitments; (iii) the proceeds of any New Loans shall be used, at the discretion of the Borrower, for any purpose not prohibited by this Agreement; (iv) the New Loans shall be secured by the Collateral on a pari passu or, at the Borrower’s option, junior basis (so long as any such New Loan Commitments (and related Obligations) are subject to an Intercreditor Agreement or an Other Intercreditor Agreement) and shall benefit ratably from the guarantees under the Guarantee and Collateral Agreement; (v) in the case of New Loans that are term loans (“New Term Loans”), the maturity date thereof shall not be earlier than the Latest Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the ~~Other~~ Latest Maturing Tranche A Term Loans ~~shall~~ (other than an earlier maturity date and/or shorter weighted average life to maturity for customary bridge financings, which, subject to customary conditions, would either be no automatically converted into or required to be exchanged for permanent financing which does not provide for an earlier maturity date or a shorter weighted average life to maturity than the Latest Maturity Date or the weighted average life to maturity of the Latest Maturing Tranche A Term Loans, as applicable); (vi) in the case of any New Loans that are revolving loans or commitments (“New Revolving Loans”) the maturity date or commitment termination date thereof shall not be earlier than the Revolving Termination Date and such New Revolving Loans shall not require any scheduled commitment reductions prior to the Revolving Termination Date; (vii) the New Revolving Loans shall share ratably in any mandatory prepayments or utilizations of the existing Revolving Loans; (viii) subject to Section 2.24, commitment reductions shall apply ratably to the Revolving Commitments and any commitments in respect of New Revolving Loans; provided that the Borrower may reduce 100% of the commitments of any revolving facility on a non-pro rata basis with the commitments under any other revolving facility hereunder; provided further that at the request of the Borrower, in lieu of such application on a pro rata basis among all Revolving Commitments, such reduction may be applied to any Revolving Commitments so long as the termination date of such Revolving Commitments precedes the termination date of each other Tranche of Revolving Commitments then outstanding or, in the event more than one Tranche of Revolving Commitments shall have an identical termination date that precedes the termination date of each other Tranche of Revolving Commitments then outstanding, to such Tranches on a pro rata basis; (ix) all terms and documentation with respect to any New Loans which differ from those with respect to the Loans under the applicable Facility shall be reasonably satisfactory to the Administrative Agent (except to the extent permitted by clauses (iv), (v) and (vi) above and the last sentence of this paragraph and, with respect to the 2018 Delayed Draw Tranche A Term Commitments, except to the extent set forth in the Sixth Amendment); (x) such New Loans or New Loan Commitments (other than Supplemental Term Loan Commitments and Revolving Commitment Increases) shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; (xi) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Joinder Agreement, Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under, such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the New Loan Commitments and the extensions of credit thereunder and (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby; and (xii) if the initial “spread” (for purposes of this Section 2.25, the “spread” with respect to any Term Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Term Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to any New Term Loan, made on or prior to the 24-month anniversary of the Third Amendment Effective Date, with annual amortization of less than 5.0% exceeds the spread then in effect with respect to the Initial Tranche B Term Loans by more than 0.50%, the Applicable Margin relating to the Initial Tranche B Term Loans shall be adjusted so that the spread relating to such New Term Loans does not exceed the spread applicable to the Initial Tranche B Term Loans by more than 0.50%; provided that if such New Term Loans include an interest rate floor greater than the interest rate floor applicable to the Initial Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Initial Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Initial Tranche B 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 Margin) applicable to the Initial Tranche B Term Loans shall be increased by such amount. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Loan Commitments shall be determined by the Borrower and the applicable New Lenders and shall be set forth in the applicable Joinder Agreement. (c) ~~if the initial yield~~ On any Increased Amount Date on ~~such Other Loans (as determined by the Administrative Agent to be equal~~ which any New Loan Commitment become effective, subject to the ~~sum of~~ foregoing terms and conditions, each lender with a New Loan Commitment (xeach, a “New Lender”) ~~the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at~~ shall become a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, Lender hereunder with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental New Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendmentsCommitment. (d) ~~Notwithstanding~~ For purposes of this Agreement, any New Loans or New Loan Commitments shall be deemed to be Term Loans, Revolving Loans or Revolving Commitments, as applicable. Each Joinder Agreement may, without the ~~foregoing~~consent of any other Lenders, ~~no Incremental~~ effect such amendments to this Agreement and the other Loan ~~Commitment shall become effective under~~ Documents as may be necessary or appropriate, in the opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section ~~2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied~~2.25. (e) ~~Each~~ Supplemental Term Loan Commitments and Revolving Commitment Increases shall become commitments under this Agreement pursuant to (xw) in the case of the ~~parties~~ 2016 Supplemental Tranche A Term Loans, the Third Amendment, (yx) in the case of the 2018 Delayed Draw Tranche A Term Commitments, the Sixth Amendment, (y) in the case of the 2022 Supplemental Tranche A Term Loans, the Ninth Amendment or (z) otherwise, a supplement specifying the Term Loan Tranche or Revolving Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto ~~hereby agrees that~~ as Exhibit L-1 (the “Increase Supplement”) or by each New Lender substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, which shall be delivered to the Administrative Agent ~~may~~for recording in the Register. Upon effectiveness of the Lender Joinder Agreement, ~~in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in~~ each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence New Lender shall be ~~subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period~~ a Lender for ~~a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period~~ all intents and purposes of this Agreement and the ~~other economic consequences thereof~~ term loan made pursuant to such Supplemental Term Loan Commitment shall be ~~as set forth in~~ a Term Loan or the ~~applicable Incremental Loan Assumption Agreement. In addition,~~ commitments made pursuant to ~~the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of~~ such ~~Incremental Loans~~ Revolving Commitment Increase shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationRevolving Commitments, as applicable.

Appears in 1 contract

Samples: Credit Agreement (Booz Allen Hamilton Holding Corp)

Incremental Loans. (a) ~~The~~ At any time after the Closing Date, the Borrower may, by written notice to the ~~Administrative Agent from time~~ Agent, elect to ~~time~~request the establishment of: (i) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loans, an “Incremental Term Loan”); or (ii) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, an “Incremental Revolving Credit Increase” and together with the Incremental Term Loans, the “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments shall not (as of any date of incurrence thereof) exceed the sum of (A) $100,000,000 plus (B) an unlimited additional amount so long as, in the case of this clause (B), the Borrower has a Consolidated Net Secured Leverage Ratio that does not exceed 3.50 to 1.00, after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (assuming the full draw of all such Incremental Loan Commitments, but disregarding any proceeds thereof in an calculating the numerator of the Consolidated Net Leverage Ratio), and (z) any Permitted Acquisition consummated in connection therewith or other use of the proceeds thereof and (ii) the total aggregate amount ~~not to exceed~~ for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount at Date”) on which the ~~time such~~ Borrower proposes that any Incremental Loan ~~Commitments are established~~Commitment shall be effective, ~~from one~~ which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Agent. The Borrower may invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or ~~more~~ approached to provide all or a portion of any Incremental ~~Term Lenders (which~~ Loan Commitment may ~~include any existing Lender and which must be Eligible Assignees) willing~~ elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. ~~Such notice~~ Any Incremental Loan Commitment shall ~~set forth~~ become effective as of such Increased Amount Date; provided that: (iA) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the ~~amount~~ making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (B) the Agent and the Lenders shall have received from the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that the Borrower has a Consolidated Net Leverage Ratio that does not exceed 5.25 to 1.00 and, in the case of an incurrence under clause (i)(B) above, a Consolidated Net Secured Leverage Ratio that does not exceed 3.50 to 1.00, in each case, after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (assuming the full draw of all such Incremental Loan Commitments, but disregarding any proceeds thereof in calculating the numerator of the ~~Incremental Loan Commitments being requested~~ Consolidated Net Leverage Ratio), and (~~which~~ z) any Permitted Acquisition consummated in connection therewith or other use of the proceeds thereof; (C) each of the representations and warranties contained in Article VII shall be true and correct in ~~minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal~~ all material respects, except to the ~~remaining~~ extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided, solely in the case of any Incremental ~~Amount~~ Loans the proceeds of which are intended to and shall be used to finance substantially contemporaneously a Limited Condition Acquisition, and notwithstanding anything in Section 6.2 to the contrary, the Persons providing such Incremental Loans may agree to a “Funds Certain Provision” that (A) does not impose as a condition to the funding thereof that no Default or Event of Default exists at the time such Permitted Acquisition or such Investment is consummated, in ~~each case such lesser amount approved by~~ which event, the ~~Administrative Agent), (ii)~~ condition may be that no Default or Event of Default shall exist on the date on which the definitive acquisition agreement with respect to such ~~Incremental Loan Commitments are requested~~ Permitted Acquisition or such Investment is executed and delivered by the parties thereto, (B) provides that the ratios required to ~~become effective (which shall not~~ be ~~less than 10 Business Days nor more than 60 days after~~ tested may be tested on the date ~~of such notice)~~on which the acquisition agreement therefor is executed and delivered by the parties thereto, and (~~iii~~C) ~~whether~~ does not impose as a condition to the funding thereof that all representations and warranties contained herein and in the other Loan Documents shall be true and correct in all material respects on and as of that Funding Date, in which event, the condition may be that only (x) the representations made by or on behalf of the Persons and assets to be acquired in the applicable acquisition agreement as are material to the interests of the Lenders are required to be true and correct, but only to the extent that the Borrower or its applicable Subsidiary has the right to decline to consummate such ~~Incremental Loan Commitments are commitments to make additional Loans~~ acquisition as a result of a breach or ~~commitments to make term loans with terms different from~~ inaccuracy of such representations in the ~~Loans~~ applicable acquisition agreement, and (~~“Other Loans”).~~ y) the Specified Representations referenced in clause (b) ~~The Borrower may seek~~ of the definition thereof are required to be true and correct in all material respects; (D) the proceeds of any Incremental Loans shall be used as set forth in Section 8.15; (E) each Incremental Loan ~~Commitments from existing Lenders~~ Commitment (and the Incremental Loans made thereunder) shall constitute Credit Agreement Obligations and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (F) (1) in the case of each Incremental Term Loan (the terms of which shall be ~~entitled to agree or decline to participate~~ set forth in ~~its sole discretion~~the relevant Lender Joinder Agreement): (I) ~~and additional banks, financial institutions and other institutional lenders who will become~~ such Incremental Term Loan will mature and amortize in a manner agreed by the Incremental Lenders ~~in connection therewith. The Borrower and each~~ making such Incremental Term ~~Lender shall execute~~ Loan and ~~deliver~~ the Borrower, but will not in any event have a shorter weighted average life to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity ~~date of any Other Loans shall be no earlier~~ than the ~~Maturity Date, and (ii) the~~ remaining weighted average life to maturity of the ~~Other Loans~~ Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date; (II) the All-In Yield for such Incremental Term Loan shall be ~~no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as~~ determined by the ~~Administrative Agent to~~ applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; provided that if the All-In Yield in respect of any Incremental Term Loan exceeds the All-In Yield for the Initial Term Loan by more than 0.50%, then the Applicable Margin for the Initial Term Loan shall be increased so that the All-In Yield in respect of such Initial Term Loan is equal to the ~~sum of~~ All-In Yield for the Incremental Term Loan minus 0.50%; and (xIII) ~~the margin above the Adjusted LIBO Rate on such Other Loans~~ except as provided above, all other terms and ~~(y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or~~ conditions applicable to any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided thatIncremental Term Loan, to the extent ~~any portion of~~ not consistent with the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time terms and ~~the “LIBOR floor”~~ conditions applicable to the ~~initial Loans~~Initial Term Loan, ~~and, with respect to such excess, the “LIBOR floor” applicable~~ shall be reasonably satisfactory to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower ~~may revise this Agreement~~ (provided that such other terms and conditions, taken as a whole, shall not be materially more favorable to ~~evidence~~ the Lenders under any Incremental Term Loans than such ~~amendments. (d) Notwithstanding~~ other terms and conditions, taken as a whole, under the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Initial Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.;

Appears in 1 contract

Samples: Credit Agreement (KMG Chemicals Inc)

Incremental Loans. In addition to Borrowings of Syndicated Revolving Credit Loans pursuant to paragraph (a) ~~The Borrower may~~above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Company may request that the Lenders or, at the option of the Borrowers, other financial institutions or funds selected by the Borrowers and consented to by the Administrative Agent (which agrees not to withhold such consent unreasonably) offer to enter into commitments to make additional revolving Incremental ~~Loan Commitments~~Loans in Dollars and other Currencies under this paragraph (b) to the Borrowers. In the event that one or more of the Lenders or such other financial institutions or funds offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or funds and the Borrowers agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by the Borrowers in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Loans under this Agreement in an amount equal to the amount of their respective Incremental Loan Commitments (and such financial institutions shall become “Incremental Loan Lenders” hereunder). The Incremental Loans to be made pursuant to any such agreement between the Borrowers in response to any such request by the Company shall be deemed to be a separate “Series” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) the aggregate principal amount of all Incremental Loan Commitments and all outstanding Series of Incremental Loans, together with any increase of Revolving Credit Commitments pursuant to Section 2.08(e) and increase in Synthetic LC Funding Amounts pursuant to Section 3.08(e), shall not to exceed $100,000,000. Except as otherwise expressly provided herein, the Incremental ~~Amount at~~ Loans of any Series shall have the ~~time~~ interest rate, participation and other fees, commitment reduction schedule (if any) and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Loan Lenders of such Series and the Borrowers, provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the collateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Obligation and (ii) the maturity or commitment termination date for any Incremental Loans shall not be earlier than the Commitment Termination Date and may be later than the Commitment Termination Date to the extent so agreed by the Borrowers and such Incremental Loan ~~Commitments are established, from~~ Lenders. Following the acceptance by the Borrowers of the offers made by any one or more Lenders to make any Series of Incremental ~~Term Lenders~~ Loans pursuant to the foregoing provisions of this paragraph (~~which may include any existing~~ b), each Incremental Loan Lender in respect of such Series of Incremental Loans severally agrees, on the terms and ~~which must be Eligible Assignees) willing~~ conditions of this Agreement, to ~~provide~~ make such Incremental ~~Loan Commitments~~ Loans to the Borrowers during the period from and including the date of such acceptance to and including the commitment termination date specified in ~~their own discretion. Such notice shall set forth (i)~~ the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan ~~Commitments being requested (which shall be in minimum increments~~ Commitment of ~~$1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which~~ such Incremental Loan ~~Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date~~ Lender in respect of such ~~notice)~~Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Borrowers may convert Incremental Loans of such Series of one Type into Incremental Loans of such Series of another Type (~~iii~~as provided in Section 2.07) ~~whether~~ or continue Incremental Loans of such Series of one Type as Incremental ~~Loan Commitments are commitments to make additional~~ Loans ~~or commitments to make term loans with terms different from~~ of such Series of the ~~Loans~~ same Type (~~“Other Loans”~~as provided in Section 2.07). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Foster Wheeler LTD)

Incremental Loans. ~~(a)~~ The Borrower ~~may~~may at any time or from time to time after the Closing Date, by ~~written~~ notice to the Administrative Agent from time to time, request Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as whereupon the Administrative Agent shall ~~reasonably specify~~ promptly deliver a copy to ~~evidence the Incremental Loan Commitment of~~ each ~~Incremental Term Lender. The terms and provisions~~ of the Lenders), request additional secured term loans hereunder (such term loans, “Incremental ~~Loans~~ Loans”); provided that (~~excluding amortization, maturity, pricing, fees and rate floors~~i) ~~shall be identical to those of the Loans~~ except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined agreed by the ~~Administrative Agent to be equal to~~ Incremental Lenders providing the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Incremental Loans, ~~being referred~~ no Default or Event of Default shall exist or would exist after giving effect to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other any Incremental Loans; provided that, in the event that any tranche of Incremental Loans is used to finance a Permitted Acquisition or other Asset Acquisition and to the extent the Incremental Lenders participating in such tranche of Incremental Loans agree, the foregoing clause (i) shall be subject to customary “Certain Funds Provisions” and only be tested at the time of the execution of the acquisition agreement related to such Permitted Acquisition or other Asset Acquisition and the representations and warranties of the Borrower set forth in this Agreement that must be true and correct in all material respects (or in all respects to the extent any ~~portion of the Yield Differential~~ such representation or warranty is ~~attributable~~ qualified by materiality or Material Adverse Effect) shall be limited to ~~a higher~~ “~~LIBOR floor~~Specified Representations” ~~being applicable~~ and “Specified Acquisition Agreement Representations” (in each case, as reasonably conformed to such ~~Other Loans, such floor shall only be included in the calculation of the Yield Differential~~ Permitted Acquisition or other Asset Acquisition); (ii) all fees and expenses owing to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the ~~Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no~~ Incremental ~~Loan Commitment shall become effective under this Section 2.04 unless on the date~~ Lenders in respect of such ~~effectiveness~~Incremental Loans shall have been paid; (iii) all Incremental Loans borrowed on one Incremental Closing Date shall be in an aggregate principal amount that is not less than $10,000,000; (iv) after giving effect to all Incremental Loans previously made hereunder and such proposed Incremental Loans, the ~~conditions set forth~~ aggregate principal amount of all such previous and proposed Incremental Loans shall not exceed (A) $275,000,000 less the aggregate principal amount of all Incremental Equivalent Debt incurred or issued in ~~Section 4.02 shall be satisfied.~~ reliance on this clause (eA) ~~Each~~ plus (B) an unlimited amount so long as, in the case of this clause (B), the Secured Leverage Ratio as of the ~~parties hereto hereby agrees that~~ applicable Incremental Closing Date on a pro forma basis after giving effect to the Incremental Loans does not exceed 3.5 to 1.0, with respect to which the Borrower shall provide to the Administrative Agent ~~may,~~ a certificate as to such Secured Leverage Ratio calculated in ~~consultation with the Borrower, take any and all action as may be reasonably necessary to ensure~~ reasonable detail on such Incremental Closing Date (it being understood that ~~all~~ unsecured Incremental Loans (or, as applicable pursuant to Section 7.03(m), unsecured Incremental Equivalent Debt) will be deemed to be secured for purposes of calculating the Secured Leverage Ratio) plus (C) the amount of any voluntary prepayment of any Loans (to the extent the relevant prepayment or reduction is not funded or effected with any Indebtedness) plus (D) in the case of Incremental Loans that serve to effectively extend the maturity of the Loans, an amount equal to the reductions in the Loans to be replaced with such Incremental Loans; (v) the Borrower shall deliver or cause to be delivered on the Incremental Closing Date any legal opinions, board resolutions or other customary certificates reasonably requested by Administrative Agent in connection with any Incremental Loans and consistent in form with those delivered on the Closing Date under Section 4.01 (other than ~~Other Loans~~changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent); (vi) the Incremental Loans may rank pari passu or junior in right of payment and pari passu or junior with respect to security with the Obligations or may be unsecured (and to the extent subordinated in right of payment or pari passu or junior in right of security, ~~when originally made,~~ shall be subject to intercreditor arrangements reasonably satisfactory to the Administrative Agent); (vii) any mandatory prepayment (other than scheduled amortization payments) of Incremental Loans that are ~~included~~ pari passu in ~~each Borrowing~~ right of ~~outstanding Loans~~ payment and pari passu with respect to security shall be made on a pro rata ~~basis. This may be accomplished by~~ basis with all then existing Loans (and all then-existing Other Term Loans, Incremental Loans or Extended Loans requiring ~~each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ ratable prepayment), except that the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period Borrower and the ~~other economic consequences thereof shall be as set forth~~ Incremental Lenders in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making respect of such Incremental Loans shall be ~~ratably increased~~ 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); (viii) the material terms and provisions of Incremental Loans shall not be materially less favorable, taken as a whole, to the Loan Parties, than the terms and provisions of the Loans except as may be contemplated by clause (ix), (x) or (xi) below (provided that such terms and provisions that are not contemplated by such clauses (ix), (x) or (xi) may be different from the ~~aggregate principal amount of~~ Loans to the extent reasonably satisfactory to the Administrative Agent; it being understood that terms and provisions which are applicable only after the Latest Maturity Date are reasonably satisfactory to the Administrative Agent); (ix) such Incremental Loans shall have a final maturity that is the same as or later than the Latest Maturity Date; (x) such Incremental Loans have a Weighted Average Life to Maturity as of the Incremental Closing Date that is the same as or longer than the Weighted Average Life to Maturity of the Loans as of the Incremental Closing Date; and (xi) the all-in yield (whether in the form of interest rate margins, interest rate, original issue discount, upfront fees, or eurodollar or base rate floors (but not customary commitment, arrangement, underwriting, ticking, unused line, structuring or amendment fees), assuming, in the case of original issue discount and upfront fees, a four-year life to maturity) for such Incremental Loans will be determined by the Borrower and the Incremental Lenders and will not, in the case of Incremental Loans that are pari passu in right of payment and pari passu with respect to security with the Loans, be more than 50 basis points higher than the corresponding all-in yield (giving effect to interest rate margins, interest rate, original issue discount, upfront fees and eurodollar and base rate floors and any amendments to the Applicable Rate in respect of the Loans that became effective subsequent to the Closing Date but prior to the time of the addition of the relevant Incremental Loans (but not customary commitment, arrangement, underwriting, ticking, unused line, structuring or amendment fees) assuming, in the case of original issue discount and upfront fees, a four-year life to maturity) for the Loans made on the Closing Date and if the relevant Incremental Loans include any interest rate floor that is greater than that applicable to the existing Loans, and such floor is applicable to the existing Loans on the date of determination, the excess amount shall be ~~further~~ equated to interest margin for determining the applicable interest rate, unless the all-in yield with respect to such Loans shall be increased ~~for all Lenders on a pro rata basis~~ as of the Incremental Closing Date (which increase in yield shall be effected by increasing the Applicable Rate applicable to such existing Loans) by an amount equal to the ~~extent~~ difference between the all-in yield with respect to such Incremental Loans minus 50 basis points and the corresponding all-in yield on such Loans; provided that this clause (xi) shall only be effective until the date that is 18 months after the Closing Date. Each notice from the Borrower pursuant to this Section 2.15 shall set forth the requested amount of the relevant Incremental Loans and be delivered at least three (3) Business Days prior to the proposed Incremental Closing Date, unless the Administrative Agent shall have determined in its sole discretion to accept such notice on such Incremental Closing Date. Incremental Loans may be provided by any existing Lender (it being understood that no existing Lender will have an obligation to provide any Incremental Loans) or by any other Eligible Assignee (any such Person providing an Incremental Loan, an “Incremental Lender”). Incremental Loans shall become under this Agreement pursuant to an amendment (an “Incremental Amendment”), executed by (x) the Administrative Agent, the consent of which is not to be unreasonably withheld or delayed, (y) the Incremental Lenders and (z) the Loan Parties, and reaffirmations of the Loan Documents executed by the Loan Parties shall be delivered in connection therewith, in each case in form and substance reasonably satisfactory to 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 ~~to avoid any reduction~~ or appropriate, in the ~~amortization payments~~ reasonable opinion of the Administrative Agent and the Borrower, to ~~which~~ effect the ~~Lenders were entitled before~~ provisions of this Section 2.15. The date that any Incremental Loans are made shall be referred to as the “Incremental Closing Date” with respect to such ~~recalculation~~Incremental Loans.

Appears in 1 contract

Samples: Credit Agreement (Nortek Inc)

Appears in 1 contract

Samples: Credit Agreement (Copart Inc)

Incremental Loans. (a) ~~The~~ After giving effect to, and by virtue of, Amendment No. 1, the Borrower ~~may~~and the Tranche B Revolving Lenders have established the Tranche B Revolving Commitments on the terms set forth in Amendment No. 1 utilizing $41,470,588.23 of the $75,000,000 under clause (x) of the definition of Maximum Incremental Facilities Amount. After the Amendment No. 1 Effective Date, the Borrower may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request increases of any-then existing Tranche of Revolving Commitments (each increase in Commitment pursuant to this sentence, ~~request Incremental Loan Commitments~~a “Supplemental Revolving Commitment”) hereunder, in an aggregate amount for all such Supplemental Revolving Commitments not ~~to exceed the Incremental Amount~~ in excess of, at the time the respective Supplemental Revolving Commitments become effective, the Maximum Incremental Facilities Amount after giving effect to Amendment No. 1 and the establishment of the Tranche B Revolving Commitments. Each such ~~Incremental Loan~~ notice relating to Supplemental Revolving Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall ~~set forth~~ specify (i) the ~~amount of~~ date (each, an “Increased Amount Date”) on which the ~~Incremental Loan~~ Borrower proposes that the Supplemental Revolving Commitments ~~being requested (~~shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000~~ date not less than 10 Business Days (or ~~equal to the remaining Incremental Amount or in each case~~ such ~~lesser amount approved by~~ shorter period as the Administrative ~~Agent), (ii~~Agent may agree) after the date on which such ~~Incremental Loan~~ notice is delivered to the Administrative Agent and (ii) if applicable, the Tranche (or Tranches) of Revolving Commitments ~~are requested~~ to ~~become effective~~ be so increased (~~which shall not be less than 10 Business Days nor~~ and, if more than ~~60 days after~~ one Tranche of Revolving Commitments will be increased, the ~~date~~ amount of the aggregate Supplemental Revolving Commitment to be allocated to each such ~~notice~~Tranche); provided, that (x) any Lender offered or approached to provide all or a portion of any Supplemental Revolving Commitments may elect or decline, in its sole discretion, to provide such Supplemental Revolving Commitments, and (~~iii~~y) ~~whether~~ any Person that the Borrower proposes to become a New Lender, if such ~~Incremental Loan Commitments are commitments~~ Person is not then a Lender, must be an Eligible Assignee and must be reasonably acceptable to ~~make additional~~ the Administrative Agent, and to the extent its consent would be required to assign Loans ~~or commitments~~ to ~~make term loans with terms different from~~ any such Eligible Assignee, each Issuing Lender and the ~~Loans (“Other Loans”)~~Swingline Lender. (b) ~~The Borrower may seek Incremental Loan~~ Such Tranche B Revolving Commitments ~~from existing Lenders (each~~ shall become effective as of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewiththe Amendment No. ~~The Borrower and each Incremental Term Lender shall execute and deliver~~ 1 Effective Date pursuant to the ~~Administrative Agent an Incremental Loan Assumption Agreement and such other documentation~~ terms of Amendment No. 1. Such Supplemental Revolving Commitments shall become effective as ~~the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ of the ~~Incremental Loans (excluding amortization~~applicable Increased Amount Date; provided, ~~maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders,~~ that: (i) no Event of Default shall exist on such Increased Amount Date immediately after giving effect to such Supplemental Revolving Commitments and the ~~final maturity date~~ making of any ~~Other~~ New Loans ~~shall be no earlier than~~ pursuant thereto and any transaction consummated in connection therewith subject to the ~~Maturity Date~~Permitted Acquisition Provisions (as defined below) and the Limited Condition Acquisition Provision, ~~and~~ in connection with any acquisition or investment being made with the proceeds thereof; (ii) the ~~average life to maturity~~ proceeds of any Supplemental Revolving Commitments shall be used, at the discretion of the ~~Other Loans shall be no shorter than the average life to maturity of the Loans.~~Borrower, for any purpose not prohibited by this Agreement; (~~c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x~~iii) the ~~margin above~~ Supplemental Revolving Commitments shall benefit, ratably with the ~~Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making~~ other Commitments in the same ~~receive a fee directly or indirectly~~ Tranche, from the ~~Borrower or any Subsidiary for doing so (~~guarantees under the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans Guarantee and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor Collateral Agreement and shall only be ~~included in~~ guaranteed by the ~~calculation of~~ Guarantors; (iv) the ~~Yield Differential to~~ Supplemental Revolving Commitments shall be secured by the ~~extent such floor is greater than~~ Liens on the ~~higher of~~ Collateral on a pari passu basis with the ~~Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time~~ Liens securing all other Obligations and the ~~“LIBOR floor” applicable to the initial Loans, and,~~ Obligations with respect to ~~such excess,~~ the ~~“LIBOR floor” applicable to~~ Supplemental Revolving Commitments shall have the ~~outstanding Loans shall be increased to an amount not to exceed~~ same payment priority as the ~~“LIBOR floor” applicable to such Other Loans prior to any increase~~ other Obligations in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.same Tranche; (dv) ~~Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness,~~ the conditions set forth in Section ~~4.02~~ 2.34 shall be satisfied, if applicable; (vi) (A) the maturity date of such Supplemental Revolving Commitment shall be the Revolving Termination Date of the Tranche being so increased, (B) such Supplemental Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to such Revolving Termination Date and (C) such Supplemental Revolving Commitment shall be on the same terms as the Tranche being so increased (other than with respect to upfront fees) and pursuant to the same documentation applicable to such Tranche; (vii) such Supplemental Revolving Commitments shall be effected in accordance with Section 2.25(e); and (viii) to the extent reasonably requested by the Administrative Agent, the Borrower shall deliver or cause to be delivered (A) customary legal opinions with respect to the due authorization, execution and delivery by the Borrower and each other Loan Party to be party thereto and the enforceability of the applicable Increase Supplement or Lender Joinder Agreement, as applicable, the non-conflict of the execution, delivery of and performance of payment obligations under such documentation with this Agreement and with the organizational documents of the Loan Parties and the effectiveness of the Guarantee and Collateral Agreement to create a valid security interest, and the effectiveness of specified other Security Documents to perfect such security interests, in specified Collateral to secure the Obligations, including the Supplemental Revolving Commitments and the extensions of credit thereunder, (B) certified copies of the resolutions or other applicable corporate action of each applicable Loan Party approving its entry into such documents and the transactions contemplated thereby and (C) customary reaffirmation agreements and/or such amendments, supplements or modifications to the Security Documents as may be reasonably necessary or advisable to ensure that each New Lender is provided with the benefits of the applicable Loan Documents and each then existing Secured Party continues to be provided with the benefit of the applicable Loan Documents. Notwithstanding anything to the contrary above, in connection with the incurrence of any Supplemental Revolving Commitment, if the proceeds of such Supplemental Revolving Commitment are, substantially concurrently with the receipt thereof, to be used, in whole or in part, by the Borrower or any Restricted Subsidiary to finance, in whole or in part, a Permitted Acquisition, then to the extent so required by the applicable New Lenders, (A) the only representations and warranties that will be required to be true and correct in all material respects as of the applicable Increased Amount Date shall be (x) the Specified Representations (conformed as necessary for such Permitted Acquisition) 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 interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the 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 (B) there need not be a condition to borrowing that there be no Default or Event of Default other than there shall be no Event of Default under Sections 8.1(a) or (f) after giving effect to such incurrence (“Permitted Acquisition Provisions”). (c) On any date on which any Incremental Commitment becomes effective, subject to the foregoing terms and conditions, each lender with an Incremental Commitment (each, a “New Lender”) shall become a Lender hereunder with respect to such Incremental Commitment. (d) For purposes of this Agreement, any New Loans or Incremental Commitments shall be deemed to be Revolving Loans or Revolving Commitments, respectively. Each 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 opinion of the Borrower and the Administrative Agent, to effect the provisions of this Section 2.25. (e) ~~Each~~ Supplemental Revolving Commitments related to existing Tranche(s) of Revolving Commitments at such time shall become commitments under this Agreement pursuant to a supplement specifying the ~~parties~~ Tranche to be increased, executed by the Borrower and each increasing Lender substantially in the form attached hereto ~~hereby agrees that~~ as Exhibit L-1 (the ~~Administrative Agent may~~“Increase Supplement”) and by each New Lender (if not already a Lender) substantially in the form attached hereto as Exhibit L-2 (the “Lender Joinder Agreement”), as the case may be, or, in ~~consultation with the Borrower~~each case, ~~take any and all action~~ such other form as may be reasonably ~~necessary~~ acceptable to ~~ensure that~~ the Administrative Agent and the Borrower, which shall be delivered to the Administrative Agent for recording in the Register. Upon effectiveness of the Lender Joinder Agreement or Increase Supplement, as applicable, each New Lender shall be a Lender for all ~~Incremental Loans~~ intents and purposes of this Agreement and the commitments made pursuant to such Supplemental Revolving Commitment shall be Revolving Commitments of such increased Tranche. (~~other than Other~~ f) Upon the effectiveness of each Supplemental Revolving Commitment pursuant to this Section 2.25, (i) each Lender under the applicable Tranche immediately prior to such increase will automatically and without further act be deemed to have assigned to each New Lender providing a portion of such Supplemental Revolving Commitment, and each such New 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, Swingline Loans), ~~when originally made~~Local Loans, ~~are included~~ Acceptances and Protective Advances under such Tranche such that, after giving effect to such Supplemental Revolving Commitment and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit, Swingline Loans, Local Loans, Acceptances and Protective Advances under such Tranche held by each ~~Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring~~ Lender (including each ~~outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing~~ such New Lender) will equal such Lender’s Tranche Revolving Percentage thereof and (ii) if, on the date of ~~each Incremental Loan~~such Supplemental Revolving Commitment, there are any Revolving Loans outstanding under such Tranche, such Revolving Loans shall on or ~~by allocating a portion~~ prior to the effectiveness of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion~~ such Supplemental Revolving Commitment be prepaid from the proceeds of ~~Eurocurrency~~ additional Revolving Loans ~~to ABR Loans required by the preceding sentence~~ made hereunder (reflecting such Supplemental Revolving Commitment), which prepayment shall be ~~subject to~~ accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation2.11.

Appears in 1 contract

Samples: Asset Based Revolving Credit Agreement (Revlon Consumer Products Corp)

Incremental Loans. (a) The Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time,~~ request ~~Incremental~~ the establishment of one or more new term loans (the “New Term Loan Commitments”) or the increase of the Dollar Revolving Commitments hereunder, in an aggregate amount ~~not to exceed the Incremental Amount at the time~~ for all such ~~Incremental~~ New Term Loan Commitments ~~are established, from one or more Incremental Term Lenders (which may include any existing Lender~~ and ~~which must be Eligible Assignees) willing to provide such Incremental Loan~~ increases of the Dollar Revolving Commitments not in ~~their own discretion. Such notice shall set forth~~ excess of (i) $150,000,000 (each such establishment or increase, a “Cash-Capped Incremental Facility”) plus (ii) up to an additional amount (each such establishment or increase, a “Ratio-Based Incremental Facility”) if the ~~amount~~ pro forma Consolidated Total Leverage Ratio is less thandoes not exceed 2.75:1.00 (and, for the avoidance of doubt, for any Ratio-Based Incremental Facility, such Consolidated Total Leverage Ratio shall be calculated as though any Dollar Revolving Commitments to be incurred pursuant to this Section 2.25 were fully drawn), as of the ~~Incremental~~ end of the most recently ended Test Period. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that the New Term Loan Commitments ~~being requested (~~or increase of the Dollar Revolving Commitments shall be effective, which shall be ~~in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii)~~ date not less than 10 Business Days after the date on which such ~~Incremental~~ notice is delivered to the Administrative Agent; provided that (i) any Lender offered or approached to provide all or a portion of any New Term Loan Commitments ~~are requested~~ or increase of the Dollar Revolving Commitments may elect or decline, in its sole discretion, to ~~become effective~~ provide such New Term Loan Commitments or increase of the Dollar Revolving Commitments and (~~which shall not be less than 10 Business Days nor more than 60 days after~~ ii) any New Term Loan Commitments or increases to the ~~date~~ Dollar Revolving Commitments established pursuant to this Section 2.25 will count towards the Ratio-Based Incremental Facility prior to reducing the maximum amount under the Cash-Capped Incremental Facilities (to the extent permitted by the pro forma calculation of the Consolidated Total Leverage Ratio required prior to the incurrence of such ~~notice), and (iii) whether such~~ Ratio-Based Incremental ~~Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”~~Facility). (b) ~~The Borrower may seek Incremental~~ Such New Term Loan Commitments ~~from existing Lenders (each of which shall be entitled to agree~~ or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions increase of the ~~Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors)~~ Dollar Revolving Commitments shall ~~be identical to those~~ become effective as of ~~the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders,~~ such Increased Amount Date; provided that (i) the ~~final maturity date~~ conditions set forth in Section 5.2 were satisfied or waived on such Increased Amount Date before or after giving effect to such New Term Loan Commitments and to the making of any ~~Other~~ Tranche of New Term Loans ~~shall be no earlier than~~ pursuant thereto or to such increase of the ~~Maturity Date,~~ Dollar Revolving Commitments and after giving effect to any transaction consummated in connection therewith; (ii) the Borrower shall be in pro forma compliance with the financial covenants set forth in Section 7.1 as of the end of the most recently ended Test Period; (iii) the proceeds of any New Term Loans shall be used for general corporate purposes of the Borrower and its Subsidiaries (including Permitted Acquisitions and Investments permitted under Section 7.8); (iv) the New Term Loans shall share ratably in the Collateral and shall benefit ratably from the guarantees under the Guarantee and Collateral Agreement; (v) the New Term Loans shall share ratably or less favorably in any mandatory prepayments of the existing Term Loans; (vi) the maturity date of New Term Loans thereof shall not be earlier than the Tranche B Term Loan Maturity Date and the weighted average life to maturity shall be equal to or greater than the weighted average life to maturity of the ~~Other~~ Tranche B Term Loans; (vii) all terms and documentation with respect to any New Term Loans which differ from those with respect to the Tranche B Term Loans shall be ~~no shorter than the average life~~ reasonably satisfactory to ~~maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by~~ the Administrative Agent ~~to be equal to the sum of~~ (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, except to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, permitted by clause (vi) and, with respect to New Term Loans under the Tranche B Term Facility, clause (x) of this Section, and the last sentence of this paragraph); (viii) such ~~excess~~New Term Loans or New Term Loan Commitments or increase of the Dollar Revolving Commitments shall be effected pursuant to one or more Joinder Agreements executed and delivered by the Borrower, the Administrative Agent and one or more New Lenders; and (ix) the Borrower shall deliver or cause to be delivered any customary legal opinions or other documents reasonably requested by Administrative Agent in connection with any such transaction, including any supplements or amendments to the Security Documents providing for such New Term Loans to be secured thereby; and (x) if the initial “spread” (for purposes of this Section 2.25, the “~~LIBOR floor~~spread” with respect to any Loan shall be calculated as the sum of the Eurodollar Loan margin on the relevant Loan plus any original issue discount or upfront fees in lieu of original issue discount (other than any arranging fees, underwriting fees and commitment fees) (based on an assumed four-year average life for the applicable Facilities (e.g., 100 basis points in original issue discount or upfront fees equals 25 basis points of interest rate margin))) relating to the New Term Loans incurred before the 18-month anniversary of the First Amendment Effective Date exceeds the spread then in effect with respect to the Tranche B Term Loans by more than 0.50%, the Applicable Margin relating to the existing Tranche B Term Loans shall be adjusted so that the spread relating to such New Term Loans does not exceed the spread applicable to the ~~outstanding~~ existing Tranche B Term Loans by more than 0.50%; provided that if the New Term Loans include an interest rate floor greater than the interest rate floor applicable to the Tranche B Term Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Tranche B Term Loans shall be required, to the extent an increase in the interest rate floor for the Tranche B 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 Margin) applicable to the Tranche B Term Loans shall be increased to by such amount. Any New Term Loans made on an ~~amount not to exceed~~ Increased Amount Date that have terms and provisions that differ from those of the Term Loans outstanding on the date on which such New Term Loans are made shall be designated as a separate tranche (a “~~LIBOR floor”~~ Tranche”) of Term Loans for all purposes of this Agreement, except as the relevant Joinder Agreement otherwise provides. For the avoidance of doubt, the rate of interest and the amortization schedule (if applicable) of any New Term Loan shall be determined by the Borrower and the applicable ~~to such Other~~ lenders of New Term Loans ~~prior to any increase~~ (each, a “New Term Lender”) and shall be set forth in the applicable ~~margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption~~ Joinder Agreement. ~~Each of~~ Notwithstanding the ~~parties hereto hereby agrees that~~foregoing, ~~upon~~ the ~~effectiveness of any Incremental Loan Assumption Agreement, this Agreement~~ conditions precedent to each such increase or New Term Facility shall be ~~deemed amended~~ agreed to by the ~~extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby~~Lenders providing such increase or New Term Facility, as applicable, and the Administrative Agent and the Borrower; provided that in connection with the incurrence of any New Term Loans, if the proceeds of such New Term Loans are, substantially concurrently with the receipt thereof, 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, 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 Effective Date shall be (x) customary “specified representations” 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 interests of the Lenders, but only to the extent that Holdings or the Borrower (or any Affiliate of Holdings or the Borrower) has the right to terminate the obligations of Holdings, the 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 (B) no Event of Default under Sections 8.01(a), (f) or (g) would exist after giving effect to such incurrence. (c) On any Increased Amount Date on which any New Term Loan Commitments or increase of the Dollar Revolving Commitments becomes effective, subject to the foregoing terms and conditions, each lender with a New Term Loan Commitment or an increase of the Dollar Revolving Commitments (each, a “New Lender”) shall become a Lender hereunder with respect to such New Term Loan Commitment or such increase of the Dollar Revolving Commitments, as the case may ~~revise this Agreement to evidence such amendments~~be. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each The terms and provisions of the ~~parties hereto hereby agrees that the Administrative Agent may~~New Term Loan Commitments of any Tranche shall be, ~~in consultation with the Borrower, take any and all action~~ except as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as otherwise set forth in the relevant Joinder Agreement, identical to those of the applicable ~~Incremental~~ Term Loans and for purposes of this Agreement, any New Term Loans or New Term Loan ~~Assumption Agreement~~Commitments shall be deemed to be Term Loans. ~~In addition~~Each Joinder Agreement 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 opinion of the Administrative Agent, to effect the ~~extent any Incremental Loans are not Other Loans, the scheduled amortization payments under~~ provisions of this Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation2.25.

Appears in 1 contract

Samples: Credit Agreement (Wesco Aircraft Holdings, Inc)

Incremental Loans. ~~(a) The Borrower may~~At any time, the Borrowing Agent may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (a) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loan (any such additional term loan, an “Incremental Term Loan”); or (b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (i) after the Third Amendment Effective Date, the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed the greater of (A) $200,000,000 and (B) the amount of Consolidated Adjusted EBITDA for the immediately preceding four (4) prior Fiscal Quarters of the Borrowing Agent and its Subsidiaries, ~~from one or more~~ (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 for Incremental Term Loans and $5,000,000 for Incremental Revolving Credit Increases, or (in each case) a whole multiple of $1,000,000 in excess of such minimum amount, or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) no more than two (2) Incremental Loan Commitments shall be permitted during the term of this Agreement. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowing Agent proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowing Agent shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (~~which~~ any such Person, an “Incremental Lender”); provided that the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may ~~include any existing Lender and which must be Eligible Assignees) willing~~ elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that: (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from the Borrowing Agent a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Consolidated Net Leverage Ratio will be at least 0.25 to 1.00 less than the maximum Consolidated Net Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.16(a) (including any adjustment based on a Material Acquisition), based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully drawn) and (z) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions); (v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement; (vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Obligations on a pari passu basis; (1) in the case of each Incremental Term Loan: (I) such Incremental Term Loan will mature and amortize on the same terms as the Closing Date Term Loans; (II) the Applicable Margin and pricing grid, if applicable, and SOFR Adjustment for such Incremental Term Loan shall be the same as the Applicable Margin and SOFR Adjustment for the Closing Date Term Loans on the applicable Increased Amount Date; (III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders, provided that no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Closing Date Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Closing Date Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.10, be identical to the terms and conditions applicable to the Closing Date Term Loans; (2) in the case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required. (3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and (4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction. (c) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this ~~Section 2.04 unless~~ Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the ~~date of~~ foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such ~~effectiveness,~~ Incremental Term Loan Commitment and the ~~conditions set forth in Section 4.02 shall be satisfied~~Incremental Term Loan made pursuant thereto. (e) ~~Each of~~ On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the ~~parties hereto hereby agrees that the Administrative Agent may~~foregoing terms and conditions, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental ~~Loan, or by allocating~~ Lender with an Incremental Revolving Credit Commitment shall become a ~~portion of each Incremental Loan~~ Lender under the Revolving Credit Facility hereunder with respect to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationRevolving Credit Commitment.

Appears in 1 contract

Samples: Credit Agreement (Construction Partners, Inc.)

Incremental Loans. (ai) ~~The~~ At any time prior to the date that is six (6) months prior to the Maturity Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (A) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more term loans (any such term loan, an “Incremental Term Loan”); or (B) one or more increases in the Aggregate Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the revolving credit facility hereunder (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed (i) the greater of $250,000,000 and 100% of Consolidated EBITDA for the most recently completed four fiscal quarters for which financial statements have been delivered pursuant to Section 7.01(a) or (b) plus (ii) the maximum amount of Incremental Loan Commitments that could be incurred without causing the Secured Net Leverage Ratio to exceed 3.50 to 1.00 at the time of and after giving effect to the incurrence thereof (assuming any Incremental Revolving Increase is fully funded); provided, ~~from one~~ that any Incremental Loan Commitments will first be counted against the basket contained in clause (1)(ii) above before being counted against the basket set forth in clause (1)(i) above and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or ~~more~~ such other amounts as may be agreed by the Borrower and the Administrative Agent) or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental ~~Term Lenders~~ Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may ~~include~~ invite any ~~existing~~ Lender, any Affiliate of any Lender ~~and which must be Eligible Assignees) willing~~ and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such ~~effectiveness~~Increased Amount Date; provided that: (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition and agreed to by the Lenders providing such Incremental Term Loan, the ~~conditions~~ foregoing condition, other than with respect to the absence of an Event of Default pursuant to Section 9.01(a), (f) or (g), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition); (B) subject to Section 1.07 in connection with an Incremental Term Loan to finance a Limited Condition Acquisition, the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Borrower is in compliance with the financial covenants set forth in Section ~~4.02~~ 8.11 and (2) the Consolidated Net Leverage Ratio will be less than the maximum Consolidated Net Leverage Ratio in effect as of the end of the fiscal quarter during which the Increase Amount Date occurs pursuant to Section 8.11(a), in each case based on the financial statements most recently delivered pursuant to Section 7.01(a) or 7.0.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VI shall be ~~satisfied.~~true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date) (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition, at the election of the Lenders providing such Incremental Term Loan, the foregoing condition (i) shall apply on the LCA Test Date and (ii) with respect to the funding date of any such Incremental Term Loan, may be limited to customary “specified” representations and warranties with respect to the Borrower and its Subsidiaries); (eD) ~~Each~~ the proceeds of any Incremental Loans shall be used for general corporate purposes of the ~~parties hereto hereby agrees that~~ Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the ~~Administrative Agent may, in consultation~~ Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the ~~Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental~~ other Loans ~~(other than Other Loans), when originally made, are included in each Borrowing~~ or extensions of ~~outstanding Loans~~ credit hereunder on a ~~pro rata~~ pari passu basis~~. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ ; (1) in the ~~date~~ case of each Incremental ~~Loan, or by allocating a portion~~ Term Loan (the terms of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence~~ which shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the ~~applicable Incremental Loan Assumption~~ relevant Lender Joinder Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.):

Appears in 1 contract

Samples: Credit Agreement (Silicon Laboratories Inc.)

Incremental Loans. (a) ~~The~~ At any time prior to the Revolving Credit Termination Date, the Borrower may, by ~~written~~ notice to the Administrative Agent ~~from time~~ (which shall promptly deliver a copy to ~~time~~each of the Lenders), request the addition of up to two new tranches of term loans (the “Incremental ~~Loan Commitments, in an amount not to exceed the~~ Loans”). The Incremental Amount at the time such Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth Loans shall: (i) ~~the~~ be in an aggregate principal amount ~~of the Incremental Loan Commitments being requested (which~~ up to $50,000,000 and be made in up to two drawings, provided that, each borrowing shall be ~~in minimum increments of $1,000,000 and~~ a minimum amount of $~~5,000,000~~ 20,000,000; (ii) unless otherwise provided in this Agreement, be Term Loans for all purposes hereunder (including for purposes of sharing of Collateral and guarantees under the Guarantee and Collateral Agreement and for the purposes of any optional or mandatory prepayment); (iii) have such pricing as may be agreed by the Borrower and the Lenders providing such Incremental Loans; provided that the applicable margin for the Incremental Loans shall not exceed the Applicable Margin then in effect for the Initial Term Loans plus 0.25%; (iv) have the same or longer Weighted Average Life to Maturity as the Initial Term Loans; and (v) have a final maturity date occurring not earlier than the date which, on the date the Incremental Loans are made, is the scheduled final maturity date of the Initial Term Loans; and shall otherwise have the same terms as the Term Loans (and, unless otherwise noted in this Agreement, references to Term Loans shall be deemed as the context requires to include references to the Incremental Loans). The Borrower shall have the right to arrange for one or more banks or other financial institutions (any such bank or other financial institution being called an “Incremental Lender”) to extend commitments to provide Incremental Loans in an aggregate amount equal to the ~~remaining~~ amount, if any, by which the commitments by the Lenders to provide such Incremental ~~Amount or~~ Loans are less than the amount thereof requested by the Borrower, provided that, each Incremental Lender shall be subject to the approval of the Borrower and the Administrative Agent (which approval shall not be unreasonably withheld). No Lender shall have any obligation to make an Incremental Loan unless and until it commits to do so. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment to this Agreement executed by each ~~case~~ of the Borrower, each Lender agreeing to provide such ~~lesser amount approved by~~ Commitment, each Incremental Lender, if any, and the Administrative Agent), and such amendments to the other Loan Documents (iiexecuted by the relevant Loan Party and the Administrative Agent only) as the Borrower and the Administrative Agent shall reasonably deem appropriate to effect such purpose. For the avoidance of doubt, no amendment executed for the purpose of making Commitments in respect of Incremental Loans Commitments under this Agreement, shall require, as a condition to its effectiveness, the signature of any Lender that is not obligated to make an Incremental Loan under such amendment. The effectiveness of such amendment shall be subject to the satisfaction on the date thereof and, if different, on the date on which ~~such~~ the Incremental ~~Loan Commitments~~ Loans are ~~requested to become effective~~ made, of each of the conditions set forth in paragraphs (~~which shall not be less than 10 Business Days nor more than 60 days after the date of such notice),~~ a) and (~~iii~~b) ~~whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)~~of Section 5.2. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver Notwithstanding anything to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenderscontrary contained in this Agreement, (i) the ~~final maturity date~~ Borrower may not make more than two requests pursuant to Section 2.25 or pursuant to Section 2.26, provided that, it is understood and agreed that the Borrower may, at its sole option, make one request pursuant to each of ~~any Other Loans shall be no earlier than the Maturity Date,~~ Section 2.25 and Section 2.26 and (ii) the ~~average life~~ aggregate amount of Incremental Loans requested by the Borrower pursuant to ~~maturity~~ this Section 2.25 plus the aggregate amount of increases of the ~~Other Loans shall be no shorter than the average life~~ Revolving Credit Commitments pursuant to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02~~ 2.26 shall ~~be satisfied~~not exceed $50,000,000. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Delek US Holdings, Inc.)

Incremental Loans. (ai) ~~The Borrower may~~Term Loans. At any time commencing on the Closing Date until the Term Loan Maturity Date, ~~by written~~ subject to the conditions set forth in clause (e) below, upon notice to the Administrative ~~Agent~~ Agent, the Borrower may, from time to time, request one or more increases (but, together with increases in respect of Incremental ~~Loan~~ Revolving Commitments, not more than five (5) increases in ~~an amount not~~ the aggregate) to ~~exceed~~ the ~~Incremental Amount at the time such Incremental~~ Term Loan ~~Commitments are established,~~ Commitment or fundings of new Term Loans from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders ~~(each of which shall be entitled~~ or from other Eligible Assignees reasonably acceptable to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower ~~may revise~~ (each, an “Incremental Term Loan”), in an aggregate amount for all such Incremental Term Loans and any Incremental Revolving Commitments, not to exceed $70,000,000. Any Incremental Term Loan shall be in the amount of at least $5,000,000 (or such lower amount that represents all remaining availability pursuant to this ~~Agreement~~ Section 2.27(a)) ny-2096649 v7 and integral multiples of $1,000,000 in excess thereof (or such lower amount that represents all remaining availability pursuant to ~~evidence such amendments~~this Section 2.27(a)). (dii) ~~Notwithstanding~~ Revolving Loans. At any time during the ~~foregoing~~Revolving Commitment Period, ~~no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness,~~ subject to the conditions set forth in ~~Section 4.02 shall be satisfied.~~ clause (e) ~~Each of the parties hereto hereby agrees that~~ below, upon notice to the Administrative ~~Agent~~ Agent, the Borrower may, from time to time, request one or more increases (but, together with increases in ~~consultation with~~ respect of Incremental Term Loans, not more than five (5) increases in the ~~Borrower~~aggregate) to the Revolving Commitment from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent, ~~take any~~ the Issuing Lender, the Swingline Lender and ~~all action as may be reasonably necessary to ensure that all~~ the Borrower (the “Incremental ~~Loans (other than Other Loans~~Revolving Commitment”), ~~when originally made~~in an aggregate amount for all such Incremental Revolving Commitments and any Incremental Term Loans, ~~are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing~~ not to ~~be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis~~exceed $70,000,000. Any ~~conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence~~ Incremental Revolving Commitment shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of at least $5,000,000 (or such ~~Incremental Loans~~ lower amount that represents all remaining availability pursuant to this Section 2.27(b)) and ~~shall be further increased for~~ integral multiples of $1,000,000 in excess thereof (or such lower amount that represents all ~~Lenders on a pro rata basis~~ remaining availability pursuant to ~~the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~this Section 2.27(b)).

Appears in 1 contract

Samples: Credit Agreement (Accuray Inc)

Incremental Loans. (a) ~~The~~ Subject to Section 2.21(c), the Borrower may, not more than three times after the Closing Date, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an aggregate amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible Assignees~~) willing to provide such Incremental Loan Commitments in their own discretion~~. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender; provided that if the related Incremental Loans are to be issued with original issue discount, the applicable Incremental Loan Assumption Agreement shall set forth the amount of such original issue discount (which discount shall apply to all such Incremental Loans and Section 9.20 shall be amended to reflect such original issue discount). The terms and provisions of the Incremental Loans ~~(excluding amortization, maturity, pricing, fees and rate floors)~~ shall be substantially identical to those of the ~~Loans~~ Loans, except as otherwise set forth ~~herein~~in the immediately succeeding sentence. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the ~~Loans.~~ Loans and (ciii) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if the “effective interest rate margin” for such Other Loans ~~are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed~~ as ~~a percentage~~ of the ~~Other Loans, being referred to herein as “OID”), the amount~~ date of ~~such OID divided by the lesser of (1) the average life to maturity~~ incurrence of such Other Loans (which, for purposes of calculating the “effective interest rate margin” only, shall be determined by the Administrative Agent and shall include all upfront or similar fees, rate floors or original issue discount (2amortized over the life of such Other Loans) ~~four~~payable to all Lenders providing such Other Loans) exceeds the “effective interest rate margin” then applicable ~~margin then~~ to existing outstanding Loans (determined on the same basis as provided in ~~effect for Eurocurrency Loans~~ the immediately preceding parenthetical) by more than 50 basis ~~points (~~points, the Applicable Margins for all then outstanding Loans shall be increased automatically as of such date by the amount of such excess ~~above~~ (but only by the amount in excess of 50 basis ~~points being referred to herein as the “Yield Differential”~~points), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.21 unless (i) on the date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be ~~satisfied~~satisfied (it being agreed that, for purposes of this clause (i), any reference to the “Closing Date” in any such paragraph of Section 4.01 or in the lead-in language to Section 4.01 shall be deemed to be a reference to the applicable “Incremental Loan Closing Date”) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) the Borrower is otherwise in pro forma compliance with each of Sections 6.10, 6.11, 6.12 and 6.17, (iii) except as otherwise specified or required in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions, public records and closing certificates (other than insurance certificates) reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.01, (iv) prior to such effectiveness, if the relevant Incremental Loan Maturity Date (A) is different from the Maturity Date, or (B) is different from the maturity date of the Loans specified in the Borrower Mortgage, as then in effect, the Borrower Mortgage shall have been amended (or, if necessary or reasonably deemed advisable by the Collateral Agent, amended and restated or otherwise modified) to confirm that the Borrower Mortgage secures the Obligations with respect to such Incremental Loans, and to reflect the Final Maturity Date, (v) on or prior to the date of such effectiveness, the title insurance company (or an agent therefor) that issued, in favor of the Collateral Agent, the lender’s original title insurance policy in connection with the Loans made on the Closing Date shall have issued (or executed and delivered to the Collateral Agent an irrevocable commitment to issue) in favor of the Collateral Agent, (A) such additional and/or replacement title insurance in an amount equal to (when combined with the amount of the original title insurance remaining in place) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loans, and (B) such endorsements, coinsurance and reinsurance as may be reasonably requested by the Collateral Agent or any Lender (including any Lender that is not an Incremental Lender), insuring such amended, amended and restated or otherwise modified Borrower Mortgage as a first lien on the Mortgaged Property (as defined therein), subject to any Liens permitted by Section 6.02 and otherwise no less favorable to the Lenders than the original title insurance issued on the Closing Date (with such changes as are necessary to comply with customary title insurance practices), (vi) the Leverage Ratio is less than 1.50 to 1.00, both prior to and after giving pro forma effect to the proposed Incremental Loans and (vii) the aggregate principal amount of the Loans outstanding after giving effect to the proposed Incremental Loans does not exceed $120,000,000. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each ~~Borrowing~~ borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency Borrowing~~ Eurodollar borrowing to be converted into an ABR ~~Borrowing~~ borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency Borrowing~~ Eurodollar borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.19. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency Borrowing~~Eurodollar borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.08(a)(i) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.

Appears in 1 contract

Samples: Credit Agreement (Rentech Inc /Co/)

Appears in 1 contract

Samples: Incremental Assumption Agreement and Third Amendment to Third Amended and Restated Credit Agreement (Lindblad Expeditions Holdings, Inc.)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request Incremental Loan ~~Commitments,~~ Commitments in an amount not to exceed the Incremental Loan Amount ~~at the time such Incremental Loan Commitments are established,~~ from one or more Incremental ~~Term Lenders (~~Lenders, which may include any existing Lender; provided that each Incremental Lender, if not already a Lender ~~and~~ hereunder, shall be subject to the approval of the Administrative Agent (which ~~must~~ approval shall not be ~~Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion~~unreasonably withheld or delayed). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent~~Loan Amount), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. ~~The~~ Each Incremental Loan Assumption Agreement shall specify the terms ~~and provisions~~ of the Incremental Loans ~~(excluding amortization~~to be made thereunder; provided that, ~~maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without~~ without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, ~~and~~ (ii) the average remaining life to maturity of the Other Loans shall be no shorter than the average life to maturity of the ~~Loans.~~ Loans and (ciii) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans (which shall be increased by any “LIBOR floor” applicable to such Other Loans, to the extent in excess of the “LIBOR floor” applicable to the LIBO Rate Loans then outstanding) and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1A) the average life to maturity of such Other Loans and (2B) four) exceeds ~~the applicable margin then in effect for Eurocurrency Loans~~ by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)) the Applicable Rate then in effect for LIBO Rate Loans (which, for such purpose only, shall be deemed to include fees received by the Lenders directly or indirectly from the Borrower or any Subsidiary (including any discount at which the Loans were initially made) for making the Loans, then the ~~applicable margin~~ Applicable Rate then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby. Each Incremental Loan Assumption Agreement 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 judgment of the Administrative ~~Agent and~~ Agent, to effect the ~~Borrower may revise~~ provisions of this ~~Agreement to evidence such amendments~~Section 2.20. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.20 unless (i) on the date of such effectiveness, (A) the ~~conditions~~ representations and warranties set forth in ~~Section 4.02~~ Article III and in each other Loan Document shall be ~~satisfied~~true and correct in all material respects as of such date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date (in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), (B) at the time of and immediately after giving effect to such Incremental Loan Commitment, no Default shall have occurred and be continuing and (C) after giving effect to the making of any Incremental Loans and the use of the proceeds thereof, the Consolidated Secured Net Debt Ratio shall be less than 4.0 to 1.0 (ii) the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the Borrower and (iii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Article IV. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ LIBO Rate Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ LIBO Rate Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ LIBO Rate Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.14. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ LIBO Rate Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section ~~2.09~~ 2.07(a) required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationLoans.

Appears in 1 contract

Samples: Term Loan Credit Agreement (Petco Holdings Inc)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to ~~time~~time after the Restatement Effective Date, request (x) Incremental ~~Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental~~ Term Loan Commitments ~~are established,~~ from one or more Incremental Term ~~Lenders (which may include any existing Lender and~~ Lenders, all of which must be Eligible ~~Assignees~~Assignees and (y) ~~willing~~ Incremental Revolving Credit Commitments from one or more Incremental Revolving Lenders; provided that the aggregate amount of Incremental Term Loans and/or Incremental Revolving Credit Commitments so requested by the Borrower shall not exceed (i) the Incremental Loans Amount plus (ii) an additional amount if, at the time of (and after giving pro forma effect at such time to ~~provide~~ the incurrence of such Incremental Term Loan Commitments ~~in their own discretion~~and/or Incremental Revolving Credit Commitments and the application of proceeds therefrom, the Senior Secured Net Leverage Ratio is equal to or less than 3.75 to 1.00 (assuming all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were secured by the Borrower on a first lien basis, whether or not so secured, and all such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments were fully drawn on such date, whether or not so drawn). Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or such lesser amount equal to the remaining Incremental Loans Amount ~~or in each case such lesser amount approved by the Administrative Agent~~with respect to Incremental Term Loan Commitments), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), ) (the “Increase Effective Date”) and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Loan Lenders in connection therewith. The Borrower and each Incremental ~~Term~~ Loan Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Loan Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such ~~amendments~~amendments (without the consent of any other Lender); provided that: (i) the Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the terms of the Incremental Revolving Credit Commitments and Incremental Revolving Loans shall be identical to the Revolving Credit Commitments and the Revolving Loans; (ii) the terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans, except, in the case of Other Term Loans, as to maturity, interest rates, fees, amortization and call protection (which shall be subject to the following clauses (v) through (z)) and except as otherwise agreed by the Borrower and the Administrative Agent; provided that unless otherwise agreed by the Required Lenders, (v) the final maturity date of any Other Term Loans shall be no earlier than the Term Loan Maturity Date, (w) the weighted average life to maturity of the Other Term Loans shall be no shorter than the weighted average life to maturity of the Term Loans, (x) if the All-in Yield on such Other Term Loans exceeds the All-in Yield applicable to Eurodollar Term Loans, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, (y) the Other Term Loans shall benefit from the same Guarantees as those of the Term Loans and (z) the ranking of the Other Term Loans shall, as determined by the Borrower (1) rank pari passu or junior with the Credit Facilities in right of payment and (2) be unsecured or secured by the Collateral on a pari passu or junior basis with the Credit Facilities (and, to the extent subordinated in right of payment or security to the Credit Facilities, shall be subject to entry into a customary intercreditor arrangements in form and substance reasonably satisfactory to the Administrative Agent and Borrower); and (iii) to the extent the Revolving Credit Commitments are being increased on the relevant Increase Effective Date in connection with any Incremental Revolving Credit Commitments, the Administrative Agent and the Borrower shall determine the final allocation of such increase on the Increase Effective Date and the Administrative Agent shall promptly notify the Borrower and the Revolving Credit Lenders of the final allocation of such increase and the Increase Effective Date. On the Increase Effective Date, each of the Revolving Credit Lenders having a Revolving Credit Commitment prior to such Increase Effective Date (“Pre-Increase Revolving Lenders”) shall assign to any Revolving Credit Lender which is acquiring a new or additional Revolving Credit Commitment on the Increase Effective Date (“Post-Increase Revolving Lenders”), and such Post-Increase Revolving Lenders shall purchase from each Pre-Increase Revolving Lender such participation interests in L/C Exposure outstanding on such Increase Effective Date, and purchase Revolving Loans from Pre-Increase Revolving Lenders (or the Borrower shall prepay Revolving Loans of Pre-Increase Revolving Lenders (and pay any additional amounts required pursuant to Section 2.16) and borrow Revolving Loans from Post-Increase Revolving Lenders) pursuant to procedures reasonably acceptable to the Administrative Agent such that after giving effect to all such assignments and purchases and repayments and borrowings, such Revolving Loans and participation interests in L/C Exposure will be held by Pre-Increase Revolving Lenders and Post-Increase Revolving Lenders ratably in accordance with their Pro Rata Percentage of the Revolving Credit Commitments after giving effect to such increased Revolving Credit Commitments. (dc) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section ~~2.04~~ 2.26 unless (i) on the date of such effectiveness, and after giving effect to such Incremental Loan Commitment (assuming that the related Incremental Loans were drawn in full on such date), the conditions set forth in paragraphs (b) and (c) of Section ~~4.02~~ 4.01 shall be satisfied; provided that in the case of any Incremental Loan Commitments incurred in connection with a Limited Condition Acquisition, such conditions pursuant to this clause (i) shall be limited to the absence of an Event of Default under Section 7.01(a), (f) or (g) and the accuracy of customary “specified representations”, and (ii) except as otherwise specified in the applicable Incremental Loan Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Restatement Effective Date under Section 4.03. (ed) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding ~~Eurocurrency~~ Eurodollar Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding ~~Eurocurrency~~ Eurodollar Borrowing on a pro rata basis. Any conversion of ~~Eurocurrency~~ Eurodollar Loans to ABR Loans required by the preceding sentence shall be subject to Section ~~2.15~~2.16. If any Incremental Loan is to be allocated to an existing Interest Period for a ~~Eurocurrency~~ Eurodollar Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section ~~2.09~~ 2.11(a)(i) required to be made after the making of such Incremental Term Loans shall be ratably increased by the aggregate principal amount of such Incremental Term Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Term Lenders were entitled before such recalculation. (e) The Incremental Loans and Incremental Loan Commitments established pursuant to this Section 2.26 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guarantees and security interests created by the Security Documents except to the extent otherwise provided in the Incremental Loan Assumption Agreement applicable thereto. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure that the Liens granted by the Security Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any such new Incremental Loans or any such new Incremental Loan Commitments.

Appears in 1 contract

Samples: Amendment and Restatement Agreement (Advanced Disposal Services, Inc.)

Incremental Loans. (a) ~~The~~ At any time, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of one or more (x) incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loans, an “Incremental Term Loan”) and/or (y) increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed an amount of additional Indebtedness which would cause the Consolidated Total Leverage Ratio as of the Fiscal Quarter most recently ended prior to the incurrence of such additional Indebtedness, ~~from one or more Incremental Term Lenders~~ calculated on a Pro Forma Basis after giving effect to the incurrence of such additional Indebtedness, to exceed 2.00 to 1.00; and (~~which may include any existing Lender and which must be Eligible Assignees~~ii) ~~willing to provide such~~ the total aggregate amount for each Incremental Loan ~~Commitments in their own discretion. Such notice shall set forth~~ Commitment (~~i) the amount of~~ and the Incremental ~~Loan Commitments being requested (which~~ Loans made thereunder) shall not be ~~in minimum increments of $1,000,000 and~~ less than a minimum principal amount of $5,000,000 ~~or equal~~ or, if less, the remaining amount permitted pursuant to the ~~remaining~~ foregoing clause (i). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental ~~Amount or in each case such lesser amount approved by the Administrative Agent)~~Loan Commitment shall be effective, which shall be a date not less than ten (ii10) Business Days after the date on which such ~~Incremental Loan Commitments are requested~~ notice is delivered to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”)Administrative Agent. (b) The Borrower may ~~seek~~ invite any Lender, any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan ~~Commitments~~ Commitment (any such Person, an “Incremental Lender”); provided, however, that no such Person may be an Incremental Lender unless such Person meets all of the requirements of an assignee of the rights and obligations of a Lender under Section 14.9 of this Agreement. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan Commitment. (c) Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that: (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from ~~existing Lenders~~ the Borrower an Officer’s Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the Borrower is in compliance with the financial covenants set forth in Article X, in each case based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article VII shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct in all material respects as of such earlier date); (iv) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the other Extensions of Credit on a pari passu basis; (v) in the case of each Incremental Term Loan (the terms of which shall be ~~entitled to agree or decline to participate~~ set forth in ~~its sole discretion~~the relevant Incremental Agreement): (A) ~~and additional banks, financial institutions and other institutional lenders who will become~~ such Incremental Term ~~Lenders~~ Loan will mature and amortize in ~~connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver~~ a manner reasonably acceptable to the Administrative ~~Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence~~ Agent, the Incremental ~~Loan Commitment of each~~ Lenders making such Incremental Term ~~Lender. The terms~~ Loan and ~~provisions of~~ the ~~Incremental Loans (excluding amortization~~Borrower, ~~maturity, pricing, fees and rate floors) shall be identical~~ but will not in any event have a shorter weighted average life to ~~those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final~~ maturity ~~date of any Other Loans shall be no earlier~~ than the ~~Maturity Date, and (ii) the~~ remaining weighted average life to maturity of the ~~Other Loans~~ Initial Term Loan or a maturity date earlier than the Term Loan Maturity Date; (B) the Applicable Margin for such Incremental Term Loan shall be ~~no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as~~ determined by the Administrative ~~Agent~~ Agent, the applicable Incremental Lenders and the Borrower on the applicable Increased Amount Date; and (C) except as provided above, all other terms and conditions applicable to ~~be equal~~ any Incremental Term Loan, to the ~~sum~~ extent not consistent with the terms and conditions applicable to the Initial Term Loan, shall be reasonably satisfactory to the Administrative Agent and the Borrower; (vi) in the case of each Incremental Revolving Credit Increase (xthe terms of which shall be set forth in the relevant Incremental Agreement): (A) such Incremental Revolving Credit Increase shall mature on the ~~margin above~~ Revolving Credit Maturity Date, shall bear interest and be entitled to fees, in each case at the ~~Adjusted LIBO Rate~~ rate applicable to the Revolving Credit Loans, and shall be subject to the same terms and conditions as the Revolving Credit Loans, except for the payment of arrangement fees, upfront fees or similar fees which may be required in connection with or as a condition to any Lender’s or Incremental Lender’s agreement to provide an Incremental Revolving Credit Commitment; provided that if the upfront fees paid on such ~~Other Loans and~~ Incremental Revolving Credit Increase (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed calculated as a percentage of the ~~Other Loans, being referred to herein~~ principal amount thereof) exceed the upfront fees paid in respect of the existing Revolving Credit Commitments on the Closing Date (calculated as ~~“OID”~~a percentage of the principal amount thereof), the ~~amount~~ Borrower shall pay additional upfront fees to the Revolving Credit Lenders holding such existing Revolving Credit Commitments so that the upfront fees paid in respect of such ~~OID divided~~ Incremental Revolving Credit Increase are not higher than the upfront fees paid in respect of the existing Revolving Credit Commitments on the Closing Date; (B) the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by the ~~lesser~~ Administrative Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 5.9 in connection with such reallocation as if such reallocation were a repayment); and (C) except as provided above, all of the other terms and conditions applicable to such Incremental Revolving Credit Increase shall, except to the extent otherwise provided in this Section 5.13, be identical to the terms and conditions applicable to the Revolving Credit Facility; (1vii) such Incremental Loan Commitments shall be effected pursuant to one or more Incremental Agreements executed and delivered by the Borrower, the Administrative Agent and the applicable Incremental Lenders (which Incremental Agreement 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 opinion of the Administrative Agent, to effect the provisions of this Section 5.13); and (viii) the ~~average life~~ Borrower shall deliver or cause to ~~maturity~~ be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Credit Party authorizing such ~~Other Loans and~~ Incremental Loan and/or Incremental Loan Commitment) reasonably requested by Administrative Agent in connection with any such transaction. (2d) ~~four) exceeds~~ Any Incremental Lender making any Incremental Term Loan shall be entitled to the ~~applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein~~ same voting rights as the ~~“Yield Differential”~~existing Term Loan Lenders under the Term Loan Facility and each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Initial Term Loan (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof among the Initial Term Loan and the Incremental Term Loans)~~, then the applicable margin then in effect for~~ . The Incremental Term Loans shall ~~automatically~~ be ~~increased by the Yield Differential, effective upon the making of the Other~~ deemed to be Term Loans; provided ~~that, to the extent any portion~~ that such Incremental Term Loan shall be designated as a separate tranche of ~~the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor~~ Term Loans for all purposes of this Agreement. The Incremental Lenders shall ~~only~~ be included in ~~the calculation~~ any determination of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial LoansRequired Lenders, and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. (e) Any Incremental Lender with an Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and any Extensions of Credit made in connection with each Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the other Revolving Credit Loans made hereunder. (f) Subject to the foregoing terms and conditions, on any Increased Amount Date on which (i) any Incremental Term Loan Commitment becomes effective, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Term Loan Lender hereunder with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Commitment and the Incremental ~~Loans evidenced thereby~~Term Loan made pursuant thereto, ~~and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.~~ or (dii) ~~Notwithstanding the foregoing~~any Incremental Revolving Credit Increase becomes effective, no each Incremental ~~Loan~~ Lender with an Incremental Revolving Credit Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation a Revolving Credit Lender hereunder with ~~the Borrower, take any and all action as may be reasonably necessary~~ respect to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationRevolving Credit Commitment.

Appears in 1 contract

Samples: Credit Agreement (Fossil Group, Inc.)

Incremental Loans. (a) ~~The~~ At any time and from time to time prior to the Latest Maturity Date, subject to the terms and express conditions set forth herein, the Borrower ~~may,~~ may by ~~written~~ no less than three (3) Business Days’ prior notice to the applicable Administrative Agent ~~from time to time, request Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from one~~ (or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser ~~amount approved by the~~ number of days reasonably acceptable to such Administrative Agent), request to add one or more new credit facilities (iieach, an “Incremental Facility”) denominated, in the case of any Incremental Term Facility, in Dollars or, in the case of any Incremental Revolving Facility, at the option of the Borrower, in Dollars or any Alternative Currency, and consisting of one or more additional tranches of term loans or an increase to an existing Class of Term Loans (each, an “Incremental Term Facility”) or one or more additional tranches of revolving commitments or an increase in an existing Class of Revolving Commitments (each, an “Incremental Revolving Facility”), or a combination thereof, provided that (%4) immediately before and after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, no Event of Default has occurred and is continuing or would result therefrom (except in the case that the proceeds of any Incremental Loans are being used to finance a Permitted Acquisition or other permitted Investments, in which case the standard will be (A) no Event of Default at the time of entering into a definitive agreement with respect thereto and (B) no Event of Default under Sections ‎7.01(a), ‎(b), ‎(h) or ‎(i) on the date of incurrence thereof), (%4) subject to the provisos to this sentence, immediately after giving effect to each Incremental Facility Amendment and the applicable Incremental Facility, the Total Secured Net Leverage Ratio (excluding any concurrent borrowings 113 under the Revolving Credit Facility) computed on a Pro Forma Basis shall not exceed 3.00:1.00 or, if the proceeds of the Incremental Facilities will be used to finance a Permitted Acquisition (or a similar Investment permitted hereunder) and such Incremental Facilities will be unsecured, the Total Net Leverage Ratio computed on a Pro Forma Basis shall not exceed the Total Net Leverage Ratio immediately prior to giving effect to such Incremental Facilities (provided, however, that if the proceeds of Incremental Facilities will be used to finance a Permitted Acquisition (or a similar Investment permitted hereunder), the Total Secured Net Leverage Ratio shall be tested as of the date of entering into a definitive written agreement with respect thereto) (assuming, solely for purposes of this ‎Section 2.20 at the time of incurrence and not for any other provision hereunder, that (I) all Incremental Facilities, all Additional Term Notes and all Additional Debt secured by Liens under ‎Section 6.02(hh), in each case established on or prior to such date are (x) fully drawn and (y) secured, whether or not so secured and (II) the ~~date on which~~ proceeds of such Incremental ~~Loan Commitments~~ Loans are ~~requested~~ not included as unrestricted cash and Cash Equivalents in clause (i) of the definition of “Total Secured Net Leverage Ratio”; provided that to ~~become effective (which~~ the extent the proceeds of such Incremental Loans are to be used to prepay Indebtedness, the use of such proceeds for the prepayment of such Indebtedness may be given pro forma effect), provided that the financial incurrence test set forth in clause ‎(ii) of this paragraph ‎(a) shall not ~~be less than 10 Business Days nor more than 60 days~~ apply to the incurrence of an aggregate principal amount of Indebtedness under Incremental Facilities and Unrestricted Additional Term Notes after the Restatement Date not to exceed an amount the Dollar Equivalent (calculated using the Exchange Rate on the date of effectiveness of such Incremental Facility Amendment and Incremental Facility) of which equals $500,000,000 plus the amount of any voluntary prepayments, debt buybacks, repurchases, redemptions and other retirements, and payments by the Borrower utilizing 9.02(c), of the Term Loans and Other Applicable Indebtedness and voluntary permanent reductions of the Revolving Commitments effected after the Restatement Date that are not financed with the incurrence of Credit Agreement Refinancing Indebtedness and that do not reduce the amount of any payment otherwise due pursuant to ‎Section 2.11(d) by operation of the proviso to such clause (such Indebtedness, the “Unrestricted Incremental First Lien Indebtedness”) (it being understood and agreed that (I) the Borrower shall designate any such Indebtedness as Unrestricted Incremental First Lien Indebtedness on or prior to the date of such ~~notice)~~incurrence by notice to the applicable Administrative Agent, ~~and~~ (~~iii~~II) ~~whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from~~ the ~~Loans (“Other Loans”). (b) The~~ Borrower may ~~seek~~ redesignate any such Indebtedness originally designated as Unrestricted Incremental ~~Loan Commitments from existing Lenders~~ First Lien Indebtedness if, at the time of such redesignation, the Borrower would be permitted to incur under this ‎Section 2.20 the aggregate principal amount of Indebtedness being so redesignated (~~each~~ for purposes of ~~which shall be entitled~~ clarity, with any such redesignation having the effect of increasing the Borrower’s ability to ~~agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become~~ incur Unrestricted Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation First Lien Indebtedness as ~~the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions~~ of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such ~~Other Loans (as determined~~ redesignation by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such ~~discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”~~Indebtedness so redesignated), (III) if any such Indebtedness is incurred as Unrestricted Incremental First Lien Indebtedness, the ~~amount~~ Total Secured Net Leverage Ratio shall be permitted to exceed the financial incurrence test set forth in clause ‎(ii) of this paragraph ‎(a) to the extent of such ~~OID divided~~ amounts incurred as Unrestricted Incremental First Lien Indebtedness and (IV) the Borrower may elect to incur any Incremental Facilities under the financial incurrence test set forth in clause ‎(ii) of this paragraph ‎(a) regardless of whether the Borrower has the ability to incur Unrestricted Incremental First Lien Indebtedness at such date of incurrence) and (%4) in the event that the Yield for any Incremental Term Facility incurred by the ~~lesser of~~ Borrower is higher than the Yield for the Tranche B Term Loans made (1or deemed made) on the ~~average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans~~ Restatement Date by more than 50 basis ~~points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”)~~points, then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon Applicable Margin for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.000

Appears in 1 contract

Samples: Credit Agreement (Zebra Technologies Corp)

Incremental Loans. (a) ~~The~~ Borrower may, by written notice to ~~the Administrative~~ Agent from time to time, request an increase in the principal amount of the Loans, or request one or more additional tranches of Loans (the “Incremental ~~Loan Commitments, in~~ Loans”); provided that the aggregate principal amount of Incremental Loans incurred under this Section 2.15 after the Amendment No. 68 Closing Date shall not exceed an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount~~ sum of (a) (I) $100 million, plus (II) $150 million minus the aggregate principal amount of Indebtedness outstanding and secured at the time pursuant to clause (6)(B)(y)(i) of the definition of “Permitted Liens”, plus (b) an additional amount so long as, after giving effect to the incurrence of such additional amount, (i) Borrower could incur $1.00 of additional Indebtedness under Section 7.1(a) and (ii) the pro forma Consolidated Secured Net Leverage Ratio of Borrower (calculated without netting the cash proceeds of such Incremental ~~Loan Commitments are established, from one or more~~ Loans) does not exceed 3.00:1.00 (the “Ratio Incremental ~~Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion~~Basket”). Such notice shall set forth (ix) the amount of the Incremental ~~Loan~~ Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $~~5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~5,000,000), (iiy) the date on which such Incremental ~~Loan~~ Commitments are requested to become effective (which shall not be less than 10 ten (10) Business Days nor more than 60 sixty (60) days after the date of such ~~notice~~notice (or such longer or shorter periods as Agent shall agree), ) and (~~iii~~iiz) whether such Incremental ~~Loan Commitments~~ Loans are ~~commitments~~ intended to ~~make additional~~ be increases to the existing Loans or ~~commitments~~ are intended to ~~make term loans~~ be a new tranche of Loans with terms different from the ~~Loans (“Other~~ Loans~~”). (b) The~~ . Borrower may seek Incremental ~~Loan Commitments~~ Loans from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) ~~and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender~~ or any Additional Lender. (b) It shall ~~execute and deliver~~ be a condition precedent to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions incurrence of the Incremental Loans that (~~excluding amortization~~i) no Default or Event of Default shall have occurred and be continuing immediately prior to or immediately after the incurrence of such the Incremental Loan, ~~maturity, pricing, fees~~ (ii) the representations and ~~rate floors)~~ warranties set forth in Section 4 and in each other Loan Document shall be ~~identical to those~~ true and correct in all material respects on and as of the date the Incremental Loans are made, except to the extent that such representations or warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as ~~otherwise~~ of such earlier date and (iii) the terms of such Incremental Commitments and the Incremental Loans thereunder shall comply with Section 2.15(c); provided that the foregoing clauses (i) and (ii) will not be required to apply to the extent that the proceeds of the Incremental Loans are being used to finance a Limited Condition Acquisition. (c) The terms of the Incremental Loans shall be determined by Borrower and the Persons providing the Incremental Loans (each, an “Incremental Lender”) and set forth ~~herein. Without the prior written consent of the Required Lenders,~~ in an Incremental Amendment; provided that (i) the final maturity date of any ~~Other~~ Incremental Loans shall be no earlier than the Latest Maturity Date, ~~and~~ (ii) the ~~average life~~ Weighted Average Life to ~~maturity~~ Maturity of the ~~Other~~ Incremental Loans shall be no shorter than the ~~average life~~ remaining Weighted Average Life to ~~maturity~~ Maturity of any then-existing Loans, (iii) the Incremental Loans will rank pari passu in right of payment and with respect to security with the Loans, (iv) none of the ~~Loans.~~ borrower or guarantors with respect to the Incremental Loans shall be a Person that is not a Credit Party and the Incremental Loans shall not be secured by assets that do not constitute Collateral, (cv) with respect to any Incremental Loans incurred pursuant to clause (a) of this Section 2.15, if the ~~initial yield~~ All-in Yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any ~~Subsidiary for doing so (the amount~~ tranche of such ~~discount or fee, expressed as a percentage~~ Incremental Loans incurred within twelvesix (126) months of the ~~Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four)~~ Amendment No. 68 Closing Date exceeds the ~~applicable margin then~~ initial All-in ~~effect~~ Yield for ~~Eurocurrency~~ the Term B-2 Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term B Loan Yield Differential”), then the ~~applicable margin then in effect~~ Applicable Margin for such Term B-2 Loans shall automatically be increased by the Term B Loan Yield ~~Differential,~~ Differential applicable to such Term B-2 Loans effective upon the making of the ~~Other~~ Incremental Loans (and Borrower shall be entitled, without the consent of any other Lender, to increase the All-in Yield on such Term B-2 Loans as necessary to ensure the Incremental Loans are “fungible” with such Term B-2 Loans~~; provided that~~), (vi) the Incremental Loans may share ratably or less than ratably (but not more than ratably) in any mandatory prepayments hereunder and (vii) to the extent ~~any portion~~ the terms of the ~~Yield Differential is attributable~~ Incremental Loans are inconsistent with the terms set forth herein (except as set forth in clause (i) through (vi) above), such terms shall be reasonably satisfactory to ~~a higher “LIBOR floor” being applicable to such Other~~ Agent. (d) In connection with any Incremental Loans, Borrower, Agent and each applicable Incremental Lender shall execute and deliver to Agent an amendment to this Agreement (which may take the form of an amendment and restatement of this Agreement) (an “Incremental Amendment”) and such ~~floor~~ other documentation as Agent shall ~~only be included in~~ reasonably specify to evidence the ~~calculation~~ Incremental Loans of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingeach Incremental Lender. ~~The Administrative~~ Agent shall promptly notify each Lender as to the effectiveness of each Incremental ~~Loan Assumption Agreement~~Amendment. ~~Each of the parties hereto hereby agrees that~~Any Incremental Amendment may, ~~upon the effectiveness~~ without consent of any ~~Incremental Loan Assumption Agreement~~other Lender, effect such amendments to this Agreement ~~shall~~ and the other Loan Documents as may be ~~deemed amended~~ necessary or appropriate, in the reasonable opinion of Agent and Borrower, to effect the ~~extent (but only to the extent)~~ provisions of this Section 2.15, including any amendments necessary to ~~reflect the existence and terms of the Incremental Loan Commitment and~~ establish the Incremental Loans ~~evidenced thereby,~~ as a new class or tranche of Loans and such other technical amendments as may be necessary or appropriate in the ~~Administrative~~ reasonable opinion of Agent and Borrower in connection with the ~~Borrower may revise this Agreement to evidence~~ establishment of such ~~amendments. (d) Notwithstanding the foregoing~~new class or tranche, ~~no Incremental Loan Commitment shall become effective under~~ in each case on terms consistent with this Section ~~2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied~~2.15. (e) ~~Each of the parties hereto hereby agrees that the Administrative Agent may,~~ This Section 2.15 shall supersede any provision in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, Section 2.9 or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation12.2.

Appears in 1 contract

Samples: Refinancing Amendment (XPO, Inc.)

Incremental Loans. (a) The Borrower may, by written notice to the Administrative Agent from time to time, request from one or more existing or additional Lenders, all of which must be Eligible Assignees: (A) one or more new commitments for new Term Loans which may be of the same Class as any outstanding Class of Term Loans or a new Class of Term Loans (the “Incremental Term Loan Commitments”) and/or (B) the establishment of one or more new revolving credit commitments (any such new commitments, the “Incremental Revolving Credit Commitments” and the Incremental Revolving Credit Commitments, collectively with any Incremental Term Loan Commitments, the “Incremental Loan Commitments”), in an amount not to exceed the Incremental Loan Amount at (in the ~~time~~ case of Incremental Revolving Credit Commitments, assuming a borrowing of the maximum amount of Incremental Revolving Credit Loans available). The Administrative Agent shall promptly deliver a copy of such ~~Incremental Loan Commitments are established, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing~~ notice to ~~provide such Incremental Loan Commitments in their own discretion~~each of the Lenders. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of of, $1,000,000 and a minimum amount of $5,000,000 (or in such lower minimum amounts or multiples as agreed to by the Administrative Agent in its reasonable discretion), or such lesser amount equal to the ~~remaining~~ Incremental Loan Amount ~~or in each case~~ at such ~~lesser amount approved by the Administrative Agent~~time), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days ~~nor more than 60 days~~ after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans of the same Class which shall be extended in a manner so as to be fungible with an existing Class of Loans hereunder or commitments to make ~~term loans~~ Loans with terms different from ~~the~~ such Loans which shall constitute a separate Class of Loans hereunder (“Other Loans”). On the applicable date specified in any Incremental Loan Assumption Agreement (the “Incremental Facility Closing Date”), subject to the satisfaction of the terms and conditions in this Section 2.22 and in the applicable Incremental Loan Assumption Agreement, (A) (1) each Incremental Term Lender of such Class shall make a Loan to the Borrower (an “Incremental Term Loan”) in an amount equal to its Incremental Term Commitment of such Class and (2) each Incremental Term Lender of such Class shall become a Lender hereunder with respect to the Incremental Term Commitment of such Class and the Incremental Term Loans of such Class made pursuant thereto and (B) (1) each Incremental Revolving Credit Lender of such Class shall make its Commitment available to the Borrower (when borrowed, an “Incremental Revolving Loan” and collectively with any Incremental Term Loan, an “Incremental Loan”) in an amount equal to its Incremental Revolving Credit Commitment of such Class and (2) each Incremental Revolving Credit Lender of such Class shall become a Lender hereunder with respect to the Incremental Revolving Credit Commitment of such Class and the Incremental Revolving Loans of such Class made pursuant thereto. (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental ~~Term~~ Lenders in connection therewith; provided that the Borrower and the Administrative Agent shall have consented to such additional banks, financial institutions and other institutional lenders to the extent the consent of the Borrower or the Administrative Agent, as applicable, would be required if such institution were receiving an assignment of Loans pursuant to Section 9.04 (provided, further, that the consent of the Administrative Agent shall not be required with respect to an additional bank, financial institution, or other institutional lender that is an Affiliate of a Lender or a Related Fund). The Borrower and each Incremental ~~Term~~ Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental ~~Term~~ Lender. The ~~terms~~ Other Loans and ~~provisions~~ any Incremental Revolving Credit Commitments providing for Incremental Revolving Credit Loans that are Other Loans (such commitments, “Other Revolving Credit Loan Commitments” and such loans, “Other Revolving Credit Loans”) (i) shall have fees and margin and/or interest rate determined by the Borrower and the Incremental Lenders providing such Loans, (ii) shall rank pari passu in right of payment with the Loans or Commitments existing prior the incurrence of such Other Loans and Other Revolving Credit Loan Commitments and be secured by the Collateral on a pari passu basis and (iii) may participate on a pro rata basis or less than pro rata basis in any voluntary or mandatory prepayment of the ~~Incremental~~ other Term Loans (~~excluding amortization, maturity, pricing, fees and rate floors~~in the case of Incremental Term Loans) ~~shall be identical~~ or Revolving Credit Commitments (in the case of Incremental Revolving Credit Loans and/or Incremental Revolving Credit Loan Commitments) existing on the Incremental Facility Closing Date (but not greater than pro rata basis (except for prepayments in connection with a refinancing or pursuant to ~~those~~ Section 2.13(h) or any prepayments of ~~the~~ any Class of Loans ~~except as otherwise set forth herein~~or Commitments with an earlier Maturity Date than any other Class of Loans or Commitments)). Without the prior written consent of the ~~Required Lenders~~Administrative Agent, (iA) the final maturity date of any Other Loans that are Term Loans (the “Other Term Loans”) shall be no earlier than the Initial Term Loan Maturity Date, ~~and~~ (iiB) the final maturity date of any Other Revolving Credit Loans or Other Revolving Credit Loan Commitments shall be no earlier than the Initial Revolving Credit Loan Maturity Date, (C) the average life to maturity of the Other Term Loans shall be no shorter than the remaining average life to maturity of the Initial Term Loans. , (cD) if the ~~initial yield on such~~ All-In Yield applicable to the Other Loans ~~(as~~ shall be determined by the ~~Administrative Agent to~~ Borrower and the applicable Incremental Lenders and shall be ~~equal~~ set forth in each applicable Incremental Loan Assumption Agreement; provided, however, that prior to the ~~sum~~ date which is 12 months after the Closing Date, the All-In Yield applicable to such Other Term Loans shall not be greater than the applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Initial Term Loans made on the Closing Date plus 50 basis points per annum unless the interest rate (together with, as provided in the proviso below, the Adjusted LIBO Rate floor) with respect to such Loans is increased so as to cause the then applicable All-In Yield under this Agreement on such Loans to equal the All-In Yield then applicable to the Other Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Loan due to the application or imposition of an Adjusted LIBO Rate floor on any Other Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Adjusted LIBO Rate floor applicable to such Loan, (y) through an increase in the Applicable Margin for such Loan or (z) any combination of (x) ~~the margin above the Adjusted LIBO Rate on such Other Loans~~ and (y) ~~if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so~~ above, and (~~the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1~~E) the ~~average life to maturity~~ other terms and documentation in respect of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans~~; provided that~~, to the extent ~~any portion of~~ not consistent with the ~~Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans~~Term Facilities or the Revolving Credit Facilities, ~~such floor~~ as applicable, shall ~~only~~ be ~~included in the calculation of the Yield Differential~~ reasonably satisfactory to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstandingAdministrative Agent. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. ~~Each~~ Notwithstanding anything in Section 9.08 to the contrary, each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and Other Loans shall have the same guarantees as, and be ~~further increased for all Lenders~~ secured on a ~~pro rata~~ pari passu basis to with, the ~~extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation~~Loans.

Appears in 1 contract

Samples: Credit Agreement (Altice USA, Inc.)

Incremental Loans. (ai) ~~The~~ At any time prior to the date that is six (6) months prior to the Maturity Date, the Borrower ~~may,~~ may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (A) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more term loans (any such term loan, an “Incremental Term Loan”); or (B) one or more increases in the Aggregate Revolving Commitments (any such increase, an “Incremental Revolving Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the revolving credit facility hereunder (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans ”); provided that (1) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed (i) the greater of $250,000,000 and 100% of Consolidated EBITDA for the most recently completed four fiscal quarters for which financial statements have been delivered pursuant to Section 7.01(a) or (b) plus (ii) the maximum amount of Incremental Loan Commitments that could be incurred without causing the Secured Leverage Ratio to exceed 3.25 to 1.00 at the time of and after giving effect to the incurrence thereof (assuming any Incremental Revolving Increase is fully funded); provided, ~~from one~~ that any Incremental Loan Commitments will first be counted against the basket contained in clause (1)(ii) above before being counted against the basket set forth in clause (1)(i) above and (2) the total aggregate amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 and in integral multiples of $5,000,000 in excess thereof (or ~~more~~ such other amounts as may be agreed by the Borrower and the Administrative Agent) or, if less, the remaining amount permitted pursuant to the foregoing clause (1). Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrower proposes that any Incremental ~~Term Lenders~~ Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to the Administrative Agent. The Borrower may ~~include~~ invite any ~~existing~~ Lender, any Affiliate of any Lender ~~and which must be Eligible Assignees) willing~~ and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective ~~under this Section 2.04 unless on the date~~ as of such ~~effectiveness~~Increased Amount Date; provided that: (A) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition and agreed to by the Lenders providing such Incremental Term Loan, the ~~conditions~~ foregoing condition, other than with respect to the absence of an Event of Default pursuant to Section 9.01(a), (f) or (g), shall be satisfied at the LCA Test Date related to such Limited Condition Acquisition); (B) Subject to Section 1.07 in connection with an Incremental Term Loan to finance a Limited Condition Acquisition, the Administrative Agent and the Lenders shall have received from the Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that (1) the Borrower is in compliance with the financial covenants set forth in Section ~~4.02~~ 8.11 and (2) the Consolidated Leverage Ratio will be less than the maximum Consolidated Leverage Ratio in effect as of the end of the fiscal quarter during which the Increase Amount Date occurs pursuant to Section 8.11(a), in each case based on the financial statements most recently delivered pursuant to Section 7.01(a) or 7.0.1(b), as applicable, both before and after giving effect (on a Pro Forma Basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith; (C) each of the representations and warranties contained in Article VI shall be ~~satisfied.~~true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date) (or, to the extent constituting an Incremental Term Loan to finance a Limited Condition Acquisition, at the election of the Lenders providing such Incremental Term Loan, the foregoing condition (i) shall apply on the LCA Test Date and (ii) with respect to the funding date of any such Incremental Term Loan, may be limited to customary “specified” representations and warranties with respect to the Borrower and its Subsidiaries); (eD) ~~Each~~ the proceeds of any Incremental Loans shall be used for general corporate purposes of the ~~parties hereto hereby agrees that~~ Borrower and its Subsidiaries (including Permitted Acquisitions); (E) each Incremental Loan Commitment (and the ~~Administrative Agent may, in consultation~~ Incremental Loans made thereunder) shall constitute Obligations of the Borrower and shall be secured and guaranteed with the ~~Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental~~ other Loans ~~(other than Other Loans), when originally made, are included in each Borrowing~~ or extensions of ~~outstanding Loans~~ credit hereunder on a ~~pro rata~~ pari passu basis~~. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on~~ ; (1) in the ~~date~~ case of each Incremental ~~Loan, or by allocating a portion~~ Term Loan (the terms of ~~each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence~~ which shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the ~~applicable Incremental Loan Assumption~~ relevant Lender Joinder Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.):

Appears in 1 contract

Samples: Credit Agreement (Silicon Laboratories Inc.)

Incremental Loans. (a) ~~The Borrower may, by written notice~~ Subject to the ~~Administrative Agent from time~~ terms and conditions set forth herein: (i) each of the Incremental Term A Loan Lenders, as applicable, hereby severally (i) commits to ~~time, request~~ provide Amendment No. 2 Date Incremental ~~Loan Commitments,~~ Term A Loans and Delayed Draw Term A Loans to the Borrowers in Dollars in an amount ~~not~~ equal to ~~exceed the~~ its “Amendment No. 2 Date Incremental ~~Amount at the time~~ Term A Loan Commitment” and/or to its “Delayed Draw Term A Commitment” set forth next to such Incremental Term A Loan ~~Commitments are established~~Lender’s name in Schedules 2-A and 2-B hereto, from one or more Incremental Term Lenders (which may include any existing Lender and which must be Eligible Assignees) willing to provide such Incremental Loan Commitments in their own discretion. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Daterespectively, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of agrees (x) on the ~~margin above~~ Amendment No. 2 Closing Date, to fund Amendment No. 2 Date Incremental Term A Loans to the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (Borrowers in the amount of ~~such discount or fee~~its Amendment No. 2 Date Incremental Term A Loan Commitment, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then which Amendment No. 2 Date Incremental Term A Loan Commitment shall terminate in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective full upon the making of the ~~Other Loans; provided that~~Amendment No. 2 Date Incremental Term A Loans on the Amendment No. 2 Closing Date and (y) during the Delayed Draw Term A Loan Availability Period, to fund Delayed Draw Term A Loans to the ~~extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included~~ Borrowers in the ~~calculation~~ amount of its Delayed Draw Term A Commitment (as such amount may be modified from time to time in accordance with the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Amended Credit Agreement~~. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent~~) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the ~~date of such effectiveness,~~ terms and subject to the conditions set forth in ~~Section 4.02 shall be satisfied. (e) Each of~~ the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Amended Credit Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.Amendment No. 2

Appears in 1 contract

Samples: Credit Agreement (Syneos Health, Inc.)

Incremental Loans. In addition to Borrowings of Syndicated Revolving Credit Loans pursuant to paragraph (a) ~~The Borrower may~~above, ~~by written notice to the Administrative Agent~~ at any time and from time to time, the Company may request that any one or more of the Lenders or, at the option of the Company, other financial institutions or funds selected by the Company offer to enter into commitments to make additional revolving Incremental ~~Loan Commitments~~Loans, in Dollars, under this paragraph (b) to the Borrowers. In the event that one or more of the Lenders or such other financial institutions or funds offer, in their sole discretion, to enter into such commitments, and such Lenders or financial institutions or funds and the Company agree as to the amount of such commitments that shall be allocated to the respective Lenders or financial institutions or funds making such offers and the fees (if any) to be payable by the Borrowers in connection therewith, such Lenders or financial institutions or funds shall become obligated to make Incremental Loans under this Agreement in an amount ~~not~~ equal to ~~exceed~~ the ~~Incremental Amount at the time such~~ amount of their respective Incremental Loan Commitments ~~are established~~(and such financial institutions shall become “Incremental Lenders” hereunder). The Incremental Loans to be made pursuant to any such agreement between the Company in response to any such request by the Company shall be deemed to be a separate “Series” of Incremental Loans for all purposes of this Agreement. Anything herein to the contrary notwithstanding, ~~from~~ (i) the minimum aggregate principal amount of Incremental Loan Commitments entered into pursuant to any such request (and, accordingly, the minimum aggregate principal amount of any Series of Incremental Loans) shall be $20,000,000 or a larger multiple of $1,000,000 and (ii) immediately after giving effect to the establishment of each Incremental Loan Commitment, the sum of the Net Commitment Increase Amount plus the Net Incremental Increase Amount plus the aggregate undrawn amount of all Secured LOCs shall not exceed $225,000,000. Except as otherwise expressly provided herein, the Incremental Loans of any Series shall have the interest rate, participation and other fees, commitment reduction schedule (if any) and maturity date, and be subject to such conditions to effectiveness and initial credit extension, as shall be agreed upon by the respective Incremental Lenders of such Series, the Company and (other than in the case of any commitment reduction schedule or maturity date) the Administrative Agent (which agreement by the Administrative Agent shall not be unreasonably withheld), provided that in any event (i) the Incremental Loans shall be subject to, and entitled to the benefits of, the collateral security and Guarantees provided for herein and in the other Loan Documents on an equal and ratable basis with each other Guaranteed Obligation, (ii) the maturity for Incremental Loans shall not be earlier than the Commitment Termination Date and may be later than the Commitment Termination Date to the extent so agreed by the Company and such Incremental Lenders and (iii) the weighted average-life-to-maturity for each Series of Incremental Loans shall not be shorter than the remaining Revolving Credit Availability Period. Following the acceptance by the Company of the offers made by any one or more Lenders to make any Series of Incremental ~~Term Lenders~~ Loans pursuant to the foregoing provisions of this paragraph (~~which may include any existing~~ b), each Incremental Lender in respect of such Series of Incremental Loans severally agrees, on the terms and ~~which must be Eligible Assignees) willing~~ conditions of this Agreement, to ~~provide~~ make such Incremental ~~Loan Commitments~~ Loans to the Borrowers during the period from and including the date of such acceptance to and including the commitment termination date specified in ~~their own discretion. Such notice shall set forth (i)~~ the agreement entered into with respect to such Series in an aggregate principal amount up to but not exceeding the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date of such effectiveness, the conditions set forth in Section 4.02 shall be satisfied. (e) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental ~~Loans shall be ratably increased by the aggregate principal amount~~ Lender in respect of such Series as in effect from time to time. Thereafter, subject to the terms and conditions of this Agreement, the Borrowers may convert Incremental Loans ~~and shall be further increased for all Lenders on a pro rata basis to~~ of such Series of one Type into Incremental Loans of such Series of another Type (as provided in Section 2.07) or continue Incremental Loans of such Series of one Type as Incremental Loans of such Series of the ~~extent necessary to avoid any reduction~~ same Type (as provided in ~~the amortization payments to which the Lenders were entitled before such recalculation~~Section 2.07).

Appears in 1 contract

Samples: Credit Agreement (Foster Wheeler Ag)

Incremental Loans. ~~(a) The~~ Any Borrower ~~may~~may at any time or from time to time after the Second Restatement Effective Date, by ~~written~~ notice from the Company to the Administrative Agent ~~from time to time~~and the Lenders, request ~~Incremental Loan Commitments, in an amount not to exceed the Incremental Amount at the time such Incremental Loan Commitments are established, from~~ (a) one or more additional tranches of term loans or additional Loans of the same Class of Term Loans as an existing Class of Term Loans (the “Incremental Term ~~Lenders~~ Loans”) or (~~which may include any existing Lender and which must be Eligible Assignees~~b) ~~willing to provide such Incremental Loan Commitments~~ one or more increases in ~~their own discretion. Such notice shall set forth (i)~~ the amount of the ~~Incremental Loan~~ Revolving Credit Commitments ~~being requested~~ (~~which shall be in minimum increments of $1,000,000 and~~ a ~~minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent~~“Revolving Commitment Increase”), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”).provided that: (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) both at the ~~final maturity date~~ time of any ~~Other Loans shall be no earlier than the Maturity Date,~~ such request and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist and at the time that any such Incremental Term Loan ~~Assumption Agreement, this Agreement~~ is made (and after giving effect thereto) no Event of Default shall ~~be deemed amended~~ exist; provided that to the extent the proceeds of any such Incremental Term Loan are to be used to finance an Acquisition permitted hereunder, then this clause (~~but only~~ i) shall not be applicable so long as no Event of Default existed at the time the acquisition agreement relating to such Acquisition was entered into; (ii) immediately after giving effect to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Incremental Loan Commitment shall become effective under this Section 2.04 unless on the date borrowing of such ~~effectiveness~~Incremental Term Loans or the establishment of such Revolving Commitment Increase, the ~~conditions~~ Company shall be in compliance with the covenant set forth in Section ~~4.02~~ 7.09; (iii) each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be ~~satisfied.~~in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000; (eiv) ~~Each~~ the aggregate amount of Incremental Term Loans and Revolving Commitment Increases following the ~~parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, take any and all action as may be reasonably necessary~~ Second RestatementAmendment No. 1 Effective Date shall not exceed an amount equal to ~~ensure that all Incremental Loans~~ (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental Loan, or by allocating a portion of each Incremental Loan to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by i) $500,000,000 less (ii) the aggregate principal amount of Indebtedness incurred prior to such time in reliance on Section 7.01(c); (v) any Incremental Term Loans (1) shall not mature earlier than the Revolving Credit Termination Date, (2) shall not amortize in an amount that exceeds 20% percent of the aggregate principal amount of suchTerm A Loan Maturity Date, (2) shall not have a Weighted Average Life to Maturity that is shorter than the then remaining Weighted Average Life to Maturity of then existing Term A Loans per annum and (3) shall have the interest rates, upfront fees and OID for any Series of Incremental Term Loans as agreed between the applicable Borrower and the Incremental Lenders providing the applicable Series of Incremental Term Loans; (vi) in no event shall the Incremental Term Loans of any Series be ~~further increased for all Lenders~~ entitled to participate on a greater than pro rata basis with the Term A Loans then outstanding in any mandatory prepayment pursuant to ~~the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculation.~~this Agreement; and

Appears in 1 contract

Samples: Credit Agreement (Lamar Media Corp/De)

Incremental Loans. ~~(a) The Borrower may~~At any time, the Borrowing Agent may by written notice to the Administrative Agent ~~from time~~ elect to ~~time~~request the establishment of: (a) one or more incremental term loan commitments (any such incremental term loan commitment, ~~request~~ an “Incremental Term Loan Commitment”) to make one or more additional term loan (any such additional term loan, an “Incremental Term Loan”); or (b) one or more increases in the Revolving Credit Commitments (any such increase, an “Incremental Revolving Credit Commitment” and, together with the Incremental Term Loan Commitments, the “Incremental Loan Commitments”) to make revolving credit loans under the Revolving Credit Facility (any such increase, in an ~~amount not to exceed~~ “Incremental Revolving Credit Increase” and, together with the Incremental ~~Amount at~~ Term Loans, the ~~time~~ “Incremental Loans”); provided that (i) the total aggregate principal amount for all such Incremental Loan Commitments ~~are established~~shall not (as of any date of incurrence thereof) exceed the greater of (A) $200,000,000 and (B) the amount of Consolidated Adjusted EBITDA for the immediately preceding four (4) prior Fiscal Quarters of the Borrowing Agent and its Subsidiaries, ~~from one or more~~ (ii) the total aggregate principal amount for each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall not be less than a minimum principal amount of $10,000,000 for Incremental Term Loans and $5,000,000 for Incremental Revolving Credit Increases, or (in each case) a whole multiple of $1,000,000 in excess of such minimum amount, or, if less, the remaining amount permitted pursuant to the foregoing clause (i) and (iii) no more than three (3) Incremental Loan Commitments shall be permitted during the term of this Agreement. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the Borrowing Agent proposes that any Incremental Loan Commitment shall be effective, which shall be a date not less than ten (10) Business Days after the date on which such notice is delivered to Administrative Agent. The Borrowing Agent shall invite existing Lenders and may invite any Affiliate of any Lender and/or any Approved Fund, and/or any other Person reasonably satisfactory to the Administrative Agent, to provide an Incremental Loan Commitment (~~which~~ any such Person, an “Incremental Lender”); provided that the Issuing Lender shall consent to each Incremental Lender providing any portion of an Incremental Revolving Credit Commitment. Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Loan Commitment may ~~include any existing Lender and which must be Eligible Assignees) willing~~ elect or decline, in its sole discretion, to provide such Incremental Loan ~~Commitments in their own discretion~~Commitment. Such notice shall set forth (i) the amount of the Incremental Loan Commitments being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $5,000,000 or equal to the remaining Incremental Amount or in each case such lesser amount approved by the Administrative Agent), (ii) the date on which such Incremental Loan Commitments are requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice), and (iii) whether such Incremental Loan Commitments are commitments to make additional Loans or commitments to make term loans with terms different from the Loans (“Other Loans”). (b) The Borrower may seek Incremental Loan Commitments from existing Lenders (each of which shall be entitled to agree or decline to participate in its sole discretion) and additional banks, financial institutions and other institutional lenders who will become Incremental Term Lenders in connection therewith. The Borrower and each Incremental Term Lender shall execute and deliver to the Administrative Agent an Incremental Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Loan Commitment of each Incremental Term Lender. The terms and provisions of the Incremental Loans (excluding amortization, maturity, pricing, fees and rate floors) shall be identical to those of the Loans except as otherwise set forth herein. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Loans shall be no earlier than the Maturity Date, and (ii) the average life to maturity of the Other Loans shall be no shorter than the average life to maturity of the Loans. (c) if the initial yield on such Other Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Loans and (y) if such Other Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from the Borrower or any Subsidiary for doing so (the amount of such discount or fee, expressed as a percentage of the Other Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Loans and (2) four) exceeds the applicable margin then in effect for Eurocurrency Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the applicable margin then in effect for Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Loans; provided that, to the extent any portion of the Yield Differential is attributable to a higher “LIBOR floor” being applicable to such Other Loans, such floor shall only be included in the calculation of the Yield Differential to the extent such floor is greater than the higher of the Adjusted LIBO Rate in effect for an Interest Period of three months’ duration at such time and the “LIBOR floor” applicable to the initial Loans, and, with respect to such excess, the “LIBOR floor” applicable to the outstanding Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Other Loans prior to any increase in the applicable margin applicable to such Loans then outstanding. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Loan Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Loan Assumption Agreement, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Loan Commitment and the Incremental Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (d) Notwithstanding the foregoing, no Any Incremental Loan Commitment shall become effective as of such Increased Amount Date; provided that: (i) no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to (1) any Incremental Loan Commitment, (2) the making of any Incremental Loans pursuant thereto and (3) any Permitted Acquisition consummated in connection therewith; (ii) the Administrative Agent and the Lenders shall have received from the Borrowing Agent a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Administrative Agent, that the (1) Consolidated Net Leverage Ratio will be at least 0.25 to 1.00 less than the maximum Consolidated Net Leverage Ratio in effect as of the Increased Amount Date pursuant to Section 9.16(a) (including any adjustment based on a Material Acquisition), based on the financial statements most recently delivered pursuant to Section 8.1(a) or 8.1(b), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Loan Commitment, (y) the making of any Incremental Loans pursuant thereto (with any Incremental Loan Commitment being deemed to be fully drawn) and (z) any Permitted Acquisition consummated in connection therewith; (iii) each of the representations and warranties contained in Article 6 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true, correct and complete in all respects, on such Increased Amount Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); (iv) the proceeds of any Incremental Loans shall be used for general corporate purposes of the Borrowers and their Subsidiaries (including Permitted Acquisitions); (v) Any proposed Incremental Lender shall join this Agreement as a Lender pursuant to a Lender Joinder Agreement; (vi) each Incremental Loan Commitment (and the Incremental Loans made thereunder) shall constitute Obligations of the Borrowers and shall be secured and guaranteed with the other Obligations on a pari passu basis; (1) in the case of each Incremental Term Loan: (I) such Incremental Term Loan will mature and amortize on the same terms as the Closing Date Term Loans; (II) the Applicable Margin and pricing grid, if applicable, and SOFR Adjustment for such Incremental Term Loan shall be the same as the Applicable Margin and SOFR Adjustment for the Closing Date Term Loans on the applicable Increased Amount Date; (III) any Incremental Lender making any Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loan Lenders under the Term Loan Facility and (unless otherwise agreed by the applicable Incremental Lenders, provided that no such agreement shall allow the Incremental Term Loans to be prepaid prior to the Closing Date Term Loans) each Incremental Term Loan shall receive proceeds of prepayments on the same basis as the Closing Date Term Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (IV) except as provided above, all other terms and conditions applicable to such Incremental Term Loan shall, except to the extent otherwise provided in this Section 2.10, be identical to the terms and conditions applicable to the Closing Date Term Loans; (2) in the case of each Incremental Revolving Credit Increase: (I) such Incremental Revolving Credit Increase shall be part of the Revolving Credit Facility, shall mature on the Expiration Date, shall bear interest and be entitled to fees, in each case at the rate applicable to the Revolving Credit Facility, and shall otherwise be subject to the same terms and conditions as the Revolving Credit Facility; (II) any Incremental Lender making any Incremental Revolving Credit Increase shall be entitled to the same voting rights as the existing Revolving Credit Lenders under the Revolving Credit Facility and (unless otherwise agreed by the applicable Incremental Lenders; provided that no such agreement shall allow the Revolving Credit Commitments with respect to the Incremental Revolving Credit Increase to be terminated prior to termination of the existing Revolving Credit Commitments) each Revolving Credit Loan funded by an Incremental Revolving Credit Increase shall receive proceeds of prepayments on the same basis as the existing Revolving Credit Loans (such prepayments to be shared pro rata on the basis of the original aggregate funded amount thereof); and (III) the outstanding Revolving Credit Loans and Ratable Shares of Letter of Credit Obligations will be reallocated by the Administrative Agent on the applicable Increased Amount Date among the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Ratable Shares, and the Lenders to the Revolving Credit Facility (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrowers shall pay any and all costs required. (3) Incremental Loan Commitments shall be effected pursuant to such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 2.10, without the consent of any other Lenders; and (4) the Borrowers shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Loans and/or Incremental Loan Commitments) reasonably requested by Administrative Agent in connection with any such transaction. (c) The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this ~~Section 2.04 unless~~ Agreement. (d) On any Increased Amount Date on which any Incremental Term Loan Commitment becomes effective, subject to the ~~date of~~ foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to the Borrowers in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such ~~effectiveness,~~ Incremental Term Loan Commitment and the ~~conditions set forth in Section 4.02 shall be satisfied~~Incremental Term Loan made pursuant thereto. (e) ~~Each of~~ On any Increased Amount Date on which any Incremental Revolving Credit Increase becomes effective, subject to the ~~parties hereto hereby agrees that the Administrative Agent may~~foregoing terms and conditions, in consultation with the Borrower, take any and all action as may be reasonably necessary to ensure that all Incremental Loans (other than Other Loans), when originally made, are included in each Borrowing of outstanding Loans on a pro rata basis. This may be accomplished by requiring each outstanding Eurocurrency Borrowing to be converted into an ABR Borrowing on the date of each Incremental ~~Loan, or by allocating~~ Lender with an Incremental Revolving Credit Commitment shall become a ~~portion of each Incremental Loan~~ Lender under the Revolving Credit Facility hereunder with respect to each outstanding Eurocurrency Borrowing on a pro rata basis. Any conversion of Eurocurrency Loans to ABR Loans required by the preceding sentence shall be subject to Section 2.15. If any Incremental Loan is to be allocated to an existing Interest Period for a Eurocurrency Borrowing, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Loan Assumption Agreement. In addition, to the extent any Incremental Loans are not Other Loans, the scheduled amortization payments under Section 2.09 required to be made after the making of such Incremental Loans shall be ratably increased by the aggregate principal amount of such Incremental Loans and shall be further increased for all Lenders on a pro rata basis to the extent necessary to avoid any reduction in the amortization payments to which the Lenders were entitled before such recalculationRevolving Credit Commitment.

Appears in 1 contract

Samples: Credit Agreement (Construction Partners, Inc.)

Common use of Incremental Loans Clause in Contracts