Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”). (b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date, (ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity, (iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors, (iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d), (v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and (vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments. (c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent. (d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation. (e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments. (f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The Borrower mayshall have the right, by upon at least five Business Days’ prior written notice to the Administrative Agent from time Agent, to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental increase the Aggregate Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount DateIncremental Revolving Commitments”)) hereunder, and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make or establish new or additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of hereunder at any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on time after the Closing Date. The terms and provisions of , subject, however, in any Incremental Term Loans that are additional Tranche B Term Loans shall be identical such case, to those satisfaction of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lendersfollowing conditions precedent:
(i) the final maturity date aggregate amount of any Other Term Loans all such increases and incremental term loans during the term of this Agreement shall be no earlier than the Latest Maturity Date,not exceed $250,000,000;
(ii) no Default or Event of Default shall exist immediately before or immediately after giving effect to such increase or incremental term loans on a Pro Forma Basis (assuming for purposes hereof, that the Weighted Average Life to Maturity entire amount of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,Revolving Commitments, as increased, and any incremental term loans are fully drawn and funded);
(iii) the obligations establishment of the Borrower incremental commitments or term loans and its Subsidiaries in respect the extensions of credit thereunder are subject to satisfaction of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,conditions to all Credit Extensions in Section 5.02;
(iv) the Other Term Loans such increase or incremental term loans shall not receive mandatory prepayments be in a minimum amount of $10 million and integral multiples of $1 million in excess of their ratable share hereunder in accordance with Section 2.10(dthereof (or such lesser amounts as the Administrative Agent may agree),;
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A such increase or incremental term loans, if the initial yield on such Other Term Loans (as determined loans shall be effective only upon receipt by the Administrative Agent to be equal to the sum of (x) the margin above the Eurodollar Rate on additional commitments in a corresponding amount of such Other Term Loans requested increase or incremental term loans from either existing Lenders and/or one or more banks and other financial institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (y) if such Other Term Loans are initially made at a discount or documentation from each bank and financial institution providing an additional commitment evidencing its additional commitment and its obligations under this Agreement in form and substance reasonably acceptable to 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, andAdministrative Agent;
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate all documents (including resolutions of the board of directors of the Borrower and the Guarantors) it may reasonably request relating to that effect dated the corporate or other necessary authority for such date increase or incremental term loans and executed by a Responsible Officerthe validity of such increase or incremental term loans and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(iivii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such increase or incremental term loans on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 8.11 as of the end of the period of the four fiscal quarters most recently completed Fiscal Quarter ending prior to such transaction ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) and certificates required by Sections 5.1 and 5.2(a(b);
(viii) have been delivered, after giving effect to such Incremental if any Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of SOFR Loans are outstanding at the first day time of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (iii) except as otherwise specified in the applicable Incremental Assumption Agreementincrease, the Administrative Agent Borrower 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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of prepay such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term SOFR Loans or Tranche B convert such Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar SOFR Loans to Base Rate Loans required by the preceding sentence shall (such prepayment or conversion to be subject to Section 2.19. If 3.05) as necessary to give effect to the revised commitment amounts and percentages;
(ix) if any Incremental Term Loan Loans are outstanding at the time of any such increase in loans or commitments, payments and adjustments will be made among the Lenders as necessary to give effect to the revised commitment amounts and percentages;
(x) in the case of an incremental term loan established hereunder after the first principal amortization payment date of another term loan, adjustments will be made to the schedule of amortization payment, as appropriate, to give effect thereto such that payments of principal, interest and other amounts will be made on the same basis as for the underlying term loan and the principal amortization payments made to the holders of the existing underlying term loan will be not less than that which was payable prior to giving effect to such incremental term loan;
(xi) any term loan established hereunder will have a final maturity date that is coterminous with or later than the Maturity Date and an average life-to-maturity on the date of issuance longer than the average life-to-maturity for any existing term loan;
(xii) any new Lender providing loans and commitments must be reasonably acceptable to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon L/C Issuer and the Swing Line Lender; and
(xiii) lenders providing loans and commitments for such Interest Period and the other economic consequences thereof shall be as set forth incremental term loans or increase in the applicable Incremental Term Loan Assumption AgreementAggregate Revolving Commitments will provide a Lender Joinder Agreement and such other agreements reasonably acceptable to the Administrative Agent. In additionconnection with establishment of any such incremental loans or commitments hereunder, to (1) none of the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenderstheir affiliates shall have any obligation to provide any of the incremental loans or commitments without their prior written consent, as applicable, were entitled before such recalculation.
(e2) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by neither the Administrative Agent nor any of the Arrangers shall have any responsibility for arranging the incremental loans or commitments without their prior written consent and subject to ensure or demonstrate that the Lien such conditions, including fee arrangements, as they may provide in connection therewith and security interests granted by the Security Documents continue (3) Schedule 2.01 will be deemed to be perfected under revised to reflect the Uniform Commercial Code Lenders, loans, commitments and pro rata shares or otherwise percentages after giving effect to the extension or establishment of any such Loans or any such Commitmentsthereof.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Incremental Loans and Commitments. (a) The Borrower mayshall have the right, by upon at least five Business Days’ prior written notice to the Administrative Agent from time Agent, to time request (A) Incremental increase the Aggregate Revolving Commitments hereunder, establish new or additional incremental term loan commitments under the Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments establish new or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of hereunder at any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on time after the Closing Date. The terms and provisions of , subject, however, in any Incremental Term Loans that are additional Tranche B Term Loans shall be identical such case, to those satisfaction of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lendersfollowing conditions precedent:
(i) the final maturity date aggregate amount of any Other Term Loans all such increases during the term of this Agreement after the Amendment No. 1 Effective Date shall be no earlier than the Latest Maturity Date,not exceed $50,000,000;
(ii) no Default or Event of Default shall exist immediately before or immediately after giving effect to such increase on a Pro Forma Basis (assuming for purposes hereof, that the Weighted Average Life to Maturity entire amount of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,Revolving Commitments, as increased, is fully drawn and funded);
(iii) the obligations establishment of the Borrower incremental commitments and its Subsidiaries in respect the extension of credit thereunder are subject to satisfaction of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,conditions to all Credit Extensions in Section 5.02;
(iv) the Other Term Loans such increase shall not receive mandatory prepayments be in a minimum amount of $10 million and integral multiples of $1 million in excess of their ratable share hereunder in accordance with Section 2.10(dthereof (or such lesser amounts as the Administrative Agent may agree),;
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, if the initial yield on such Other Term Loans (as determined increase shall be effective only upon receipt by the Administrative Agent to be equal to the sum of (x) the margin above the Eurodollar Rate on additional Commitments in a corresponding amount of such Other Term Loans requested increase from either existing Lenders and/or one or more banks and other financial institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional Commitment) and (y) if such Other Term Loans are initially made at a discount or documentation from each bank and financial institution providing an additional Commitment evidencing its additional Commitment and its obligations under this Agreement in form and substance reasonably acceptable to 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, andAdministrative Agent;
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate all documents (including resolutions of the board of directors of the Borrower and the Guarantors) it may reasonably request relating to that effect dated the corporate or other necessary authority for such date increase and executed by a Responsible Officerthe validity of such increase and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(iivii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such increase on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 8.11 as of the end of the period of the four fiscal quarters most recently completed Fiscal Quarter ending prior to such transaction ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) and certificates required by Sections 5.1 and 5.2(a(b);
(viii) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to if any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of Eurodollar Rate Loans are outstanding at the first day time of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (iii) except as otherwise specified in the applicable Incremental Assumption Agreementincrease, the Administrative Agent Borrower 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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of prepay such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term Eurodollar Rate Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are convert such Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall (such prepayment or conversion to be subject to Section 2.19. If 3.05) as necessary to give effect to the revised commitment amounts and percentages;
(ix) if any Incremental Loans are outstanding at the time of any such increase in loans or commitments, payments and adjustments will be made among the Lenders as necessary to give effect to the revised commitment amounts and percentages;
(x) in the case of an increase in the amount of the Term Loan or another term loan established hereunder after the first principal amortization payment date, adjustments will be made to the schedule of amortization payment, as appropriate, to give effect thereto such that payments of principal, interest and other amounts will be made on the same basis as for the underlying term loan and the principal amortization payments made to the holders of the existing underlying term loan will be not less than that which was payable prior to giving effect to the incremental term loan;
(xi) any term loan established hereunder will have a final maturity date that is coterminous with or later than the final maturity date for the Term Loan and an average life-to-maturity on the date of issuance longer than the average life-to-maturity for the Term Loan;
(xii) any new Lender providing loans and commitments must be reasonably acceptable to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon L/C Issuer and the Swing Line Lender; and
(xiii) lenders providing loans and commitments for such Interest Period and the other economic consequences thereof shall be as set forth increase in the applicable Incremental Term Loan Assumption AgreementAggregate Revolving Commitments will provide a Lender Joinder Agreement and such other agreements reasonably acceptable to the Administrative Agent. In additionconnection with establishment of any such incremental loans or commitments hereunder, to (1) none of the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenderstheir affiliates shall have any obligation to provide any of the incremental loans or commitments without their prior written approval, as applicable, were entitled before such recalculation.
(e2) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by neither the Administrative Agent nor any of the Arrangers shall have any responsibility for arranging the incremental loans or commitments without their prior written consent and subject to ensure or demonstrate that the Lien such conditions, including fee arrangements, as they may provide in connection therewith and security interests granted by the Security Documents continue (3) Schedule 2.01 will be deemed to be perfected under revised to reflect the Uniform Commercial Code Lenders, loans, commitments and pro rata shares or otherwise percentages after giving effect to the extension or establishment of any such Loans or any such Commitmentsthereof.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B B-4 Term Loans or commitments to make term loans with terms different from the Tranche B-4 Term Loans, including, for the avoidance of doubt, tranche A Term Loans and the Tranche B Term Loans term loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A B-4 Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B B-4 Term Loans on the Restatement Funding Fourth Amendment Effective Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B B-4 Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lenders:
(i) except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that are incurred prior to the twenty four-month anniversary of the Third Amendment Effective Date and contain provisions customarily applicable to Tranche A B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity All-In Yield of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect All-In Yield for the Tranche A B-4 Term Loans that are Eurodollar EurodollarSOFR 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 Tranche A B-4 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided, further, that this clause (v) shall not apply to Other Term Loans that are incurred to finance, in whole or in part, a Transformative Acquisition, and
(vi) in connection with respect to Other Term Loans that contain provisions customarily applicable to Tranche B tranche A term loans, if the initial yield on such pricing of Other Term Loans (as determined by the Administrative Agent may be subject to be equal “most favored nations” provisions if and to the sum extent set forth in the Incremental Assumption Agreement for such tranche of (x) the margin above the Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A B-4 Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of the Tranche A B-4 Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar EurodollarSOFR Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A B-4 Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar EurodollarSOFR Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B B-4 Term Loans that are Eurodollar EurodollarSOFR Loans to Base Rate Loans required by the preceding sentence shall not be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B B-4 Term Loans that are Eurodollar EurodollarSOFR Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A B-4 Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B BB-2 Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B BB-2 Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B BB-2 Term Loans shall be identical to those of the Tranche B BB-2 Term Loans on the Restatement Funding FundingFirst Amendment Effective Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B BB-2 Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B BB-2 Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B BB-2 Term Loans that are 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 then in effect for Tranche B Xxxxxxx XX-0 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B BB-2 Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B BB-2 Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B BB-2 Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B BB-2 Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B BB-2 Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B BB-2 Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The US Borrower may, may by written notice to the Administrative Agent elect from time to time to request the establishment of one or more new term loan commitments (A“New Term Loan Commitments” and the loans thereunder, the “New Term Loans”), new term loan B commitments (“New TLB Commitments” and the loans thereunder, the “New TLB Loans”) Incremental or additional or increased US Revolving Commitments hereunder, in an aggregate amount such that the aggregate outstanding amount of Term Loans (after giving effect to such New Term Loan Commitments but without taking into account the 2011 Original Maturity Date Term Loans), the New TLB Loans (after giving effect to such New TLB Commitments) and Revolving Commitments (after giving effect to such additional or increased US Revolving Commitments but without taking into account any Revolving Commitments that terminate on the Original Maturity Date pursuant to Section 4.03(a)(ii)) are not in excess of $700,000,000; provided that if at any time prior to the Original Maturity Date the aggregate principal amount of Term Loans (after giving effect to such New Term Loan Commitments and taking into account the 2011 Original Maturity Date Term Loans), the New TLB Loans (after giving effect to such New TLB Commitments) and Revolving Commitments (after giving effect to such additional or increased US Revolving Commitments and taking into account Revolving Commitments that terminate on the Original Maturity Date pursuant to Section 4.03(a)(ii)) outstanding at such time exceeds $700,000,000, the US Revolving Commitments shall be temporarily reduced by an amount equal to such excess until the repayment of all 2011 Original Maturity Date Term Loans and the termination of any applicable Revolving Commitments pursuant to Section 4.03(a)(ii) on the Original Maturity Date (it being understood and agreed that, notwithstanding the foregoing, during the period of any such temporary reduction, fees shall accrue and be payable pursuant to Section 4.07(a) without taking into account such temporary reduction in the Revolving Commitments); provided, further, that if on the Original Maturity Date, after giving effect to the repayment of all then outstanding 2011 Original Maturity Date Term Loans and the termination of any then outstanding applicable Revolving Commitments pursuant to Section 4.03(a)(ii), the aggregate principal amount of Term Loans, New TLB Loans and Revolving Commitments outstanding exceeds $700,000,000, the US Borrower will make repayments of Term Loans and New TLB Loans and permanent reductions of Revolving Commitments on such date in an aggregate amount equal to such excess. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the US Borrower proposes that the New Term Loan Commitments, and/or (B) Incremental New TLB Commitments or additional or increased US Revolving Commitments by increasing the Total Revolving Credit Commitmentsshall be effective, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) date not less than three Business Days after the date on which such Incremental Term Loan Commitments notice is delivered to Administrative Agent; provided that any Lender offered or Incremental Revolving Commitments are requested 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) (the “Increased Amount Date”), and (iii) with respect to Incremental any New Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan New TLB Commitments or Incremental additional or increased US Revolving Commitments from existing Lenders (each of which shall be entitled to agree may elect or decline to participate decline, in its sole discretion, to provide or not to provide the same. Such New Term Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments shall become effective as of such Increased Amount Date; provided that (1) and no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, New TLB Commitments or additional banksor increased US Revolving Commitments, financial institutions and other institutional lenders who will become Incremental as the case may be; (2) the proceeds of any New Term Lenders Loans or Incremental Revolving Lenders in connection therewith. The any New TLB Loans shall be used for general corporate purposes of the US Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to its Subsidiaries; (3) the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A New Term Loans made on the Closing Date. The terms and provisions of any Incremental under New Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Loan Commitments shall be identical to those of the Revolving Credit Term Loans and Revolving Credit Commitments made on for purposes of this Agreement, any New Term Loans shall, upon the Closing Date. The making thereof, be deemed to be Term Loans; (4) the terms and provisions of the Other Term New TLB Loans made under the New TLB Commitments shall be identical to those of determined by the Tranche A Term Loans or Tranche B Term US Borrower and the lenders providing such New TLB Loans, as applicable, except as otherwise set forth herein or in subject to the Incremental Assumption Agreement, and any such terms not consistent with those approval of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided thatsuch approval not to be unreasonably withheld, notwithstanding anything to delayed or conditioned), and may be different from the contrary contained herein or in any other Loan Document, the Incremental Term Loans terms and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent provisions of the Required Lenders:
(i) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans 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 including but not limited to herein as “OID”)pricing, interest rate margins, premiums, rate floors, fees, amortization schedule and a mandatory prepayment provision based on excess cash flow; (5) there shall only be one tranche of New TLB Loans made under the amount of New TLB Commitments; (6) any such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be additional or increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental US Revolving Commitments and the Incremental extensions of credit thereunder shall be ratable with the existing US Revolving Commitments and extensions of credit thereunder; (7) such New Term Loans Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments shall be effected pursuant to one or more joinder agreements (each, a “Joinder Agreement”) executed and delivered by the Incremental Revolving Loans evidenced therebyUS Borrower, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment one or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by more new lenders or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term existing Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate consents have been given as if such events had occurred provided for in Section 12.04(b) for assignees of existing Term Loans or US Revolving Commitments, as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn case may be; and (Y) 8) the cash proceeds of US Borrower shall deliver or cause to be delivered any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratiocustomary legal opinions or other documents, (iii) except in each case 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 or the New Lenders in connection with those delivered on the Restatement Funding Date under Section 4.1any such transaction, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments including any supplements or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, amendments to the extent not consistent with this AgreementSecurity Documents providing for such New Term Loans, shall New TLB Loans or additional or increased US Revolving Commitments and the extensions of credit thereunder to be reasonably satisfactory to the Administrative Agentsecured thereby.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(fb) On any Increased Amount Date on which Incremental any New Term Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments are effectedbecome effective, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lendersnew lender with a New Term Loan Commitment, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental New TLB Commitment or additional US Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes(each, a Revolving Credit Loan and (c“New Lender”) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental such New Term Loan Commitment, New TLB Commitment or additional US Revolving Commitment and all matters relating each Lender with an increased US Revolving Commitment shall have its US Revolving Commitment adjusted accordingly. The New Term Loans or New TLB Loans to be made under the New Term Loan Commitments or the New TLB Commitments, as applicable, shall be made on or promptly following such effectiveness.
(c) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 4.16 (including to provide transition provisions to provide for any New Term Loans to be ratable with the Term Loans, any provisions to provide for the New TLB Loans and the terms applicable thereto, any additional or increased US Revolving Commitments to share ratably in the extensions of credit under the US Revolving Commitments).
Appears in 1 contract
Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B B-4-5 Term Loans or commitments to make term loans with terms different from the Tranche B-4-5 Term Loans, including, for the avoidance of doubt, tranche A Term Loans and the Tranche B Term Loans term loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A B-4-5 Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B B-4-5 Term Loans on the Restatement Funding FourthEighth Amendment Effective Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing DateDate (i) except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which reflect market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Incremental Revolving Loans and Incremental Revolving Commitments are issued, incurred or obtained or which are added for the benefit of the Lenders, and (z) provisions that reflect the nature of such Incremental Revolving Loans as fixed or floating rate, and (ii) except as otherwise set forth herein or in the Incremental Assumption Agreement, and, for purposes of this clause (ii), and such other terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B B-4-5 Term Loans, as applicable, (i) except for (x) pricing, fees, rate floors and prepayment or redemption premiums, which reflect market terms and conditions at the time of incurrence or issuance, (y) covenants or other provisions applicable only to periods after the Latest Maturity Date that is in effect on the date such Other Term Loan is issued, incurred or obtained or which are added for the benefit of the Lenders, and (z) provisions that reflect the nature of such Other Term Loan as fixed or floating rate, and (ii) except as otherwise set forth herein or in the Incremental Assumption Agreement, and and, for purposes of this clause (ii), any such other terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lenders:
(i) except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that are incurred prior to the twenty four-month anniversary of the ThirdEighth Amendment Effective Date and contain provisions customarily applicable to Tranche A B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity All-In Yield of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect All-In Yield for the Tranche A B-4-5 Term Loans that are Eurodollar SOFR 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 Tranche A B-4-5 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided, further, that this clause (v) shall not apply to Other Term Loans that are incurred to finance, in whole or in part, a Transformative Acquisition (this clause (v), the “MFN Provision”), and
(vi) in connection with respect to Other Term Loans that contain provisions customarily applicable to Tranche B tranche A term loans, if the initial yield on such pricing of Other Term Loans (as determined by the Administrative Agent may be subject to be equal “most favored nations” provisions if and to the sum extent set forth in the Incremental Assumption Agreement for such tranche of (x) the margin above the Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments to be incurred on such date are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans borrowed on such date are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A B-4-5 Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of the Tranche A B-4-5 Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar SOFR Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A B-4-5 Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar SOFR Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B B-4-5 Term Loans that are Eurodollar SOFR Loans to Base Rate Loans required by the preceding sentence shall not be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B B-4-5 Term Loans that are Eurodollar SOFR Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A B-4-5 Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The US Borrower may, may by written notice to the Administrative Agent elect from time to time to request the establishment of one or more new term loan commitments (A“New Term Loan Commitments” and the loans thereunder, the “New Term Loans”), new term loan B commitments (“New TLB Commitments” and the loans thereunder, the “New TLB Loans”) Incremental or additional or increased US Revolving Commitments hereunder, in an aggregate amount such that the aggregate outstanding amount of Term Loans (after giving effect to such New Term Loan Commitments but without taking into account the 2011 Original Maturity Date Term Loans), the New TLB Loans (after giving effect to such New TLB Commitments) and Revolving Commitments (after giving effect to such additional or increased US Revolving Commitments but without taking into account any Revolving Commitments that terminate on the Original Maturity Date pursuant to Section 4.03(a)(ii)) are not in excess of $700,000,000; provided that if at any time prior to the Original Maturity Date the aggregate principal amount of Term Loans (after giving effect to such New Term Loan Commitments and taking into account the 2011 Original Maturity Date Term Loans), the New TLB Loans (after giving effect to such New TLB Commitments) and Revolving Commitments (after giving effect to such additional or increased US Revolving Commitments and taking into account Revolving Commitments that terminate on the Original Maturity Date pursuant to Section 4.03(a)(ii)) outstanding at such time exceeds $700,000,000, the US Revolving Commitments shall be temporarily reduced by an amount equal to such excess until the repayment of all 2011 Original Maturity Date Term Loans and the termination of any applicable Revolving Commitments pursuant to Section 4.03(a)(ii) on the Original Maturity Date (it being understood and agreed that, notwithstanding the foregoing, during the period of any such temporary reduction, fees shall accrue and be payable pursuant to Section 4.07(a) without taking into account such temporary reduction in the Revolving Commitments); provided, further, that if on the Original Maturity Date, after giving effect to the repayment of all then outstanding 2011 Original Maturity Date Term Loans and the termination of any then outstanding applicable Revolving Commitments pursuant to Section 4.03(a)(ii), the aggregate principal amount of Term Loans, New TLB Loans and Revolving Commitments outstanding exceeds $700,000,000, the US Borrower will make repayments of Term Loans and New TLB Loans and permanent reductions of Revolving Commitments on such date in an aggregate amount equal to such excess. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the US Borrower proposes that the New Term Loan Commitments, and/or (B) Incremental New TLB Commitments or additional or increased US Revolving Commitments by increasing the Total Revolving Credit Commitmentsshall be effective, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) date not less than three Business Days after the date on which such Incremental Term Loan Commitments notice is delivered to Administrative Agent; provided that any Lender offered or Incremental Revolving Commitments are requested 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) (the “Increased Amount Date”), and (iii) with respect to Incremental any New Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan New TLB Commitments or Incremental additional or increased US Revolving Commitments from existing Lenders (each of which shall be entitled to agree may elect or decline to participate decline, in its sole discretion, to provide or not to provide the same. Such New Term Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments shall become effective as of such Increased Amount Date; provided that (1) and no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, New TLB Commitments or additional banksor increased US Revolving Commitments, financial institutions and other institutional lenders who will become Incremental as the case may be; (2) the proceeds of any New Term Lenders Loans or Incremental Revolving Lenders in connection therewith. The anyLoan Commitments, New TLB Loans shall be used for general corporate purposes of the US Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to its Subsidiaries; (3) the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A New Term Loans made on under the Closing Date. The terms and provisions of any Incremental New Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Loan Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving for purposes of this Agreement, any New Term Loans shall constitute Obligations hereunder and shall shall, upon the making thereof, be secured by deemed to be Term Loans; (4) the Collateral on a pari passu basis with all other Obligations). Without the prior written consent aggregate amount of the Required Lenders:
New TLB Loans (iafter giving effect to the New TLB Commitments) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall is not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans $300,000,000 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 any permanent reductions of Revolving Commitments of the Other Revolving Commitments after the Amendment No. 1 Effective Date; (5) the terms and provisions of the New TLB Loans made under the New TLB Commitments shall be determined by the US Borrower and the lenders providing such New TLB Loans, subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld, delayed or conditioned), and may be different from the terms and provisions of the Term Loans, being referred including but not limited to herein as “OID”pricing, interest rate margins, premiums, rate floors, fees, amortization schedule and a mandatory prepayment provision based on excess cash flow; (5maturity (in which such New TLB Loans shall have a final maturity date of not earlier than twelve months after the Second Extended Maturity Date), ; (6) the New TLB Loans shall be repayable in quarterly installments of 0.25% of the principal aggregate amount of such OID divided by the lesser New TLB Loans, with the balance of (A) the Weighted Average Life to Maturity New TLB Loans being payable on the maturity date of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, if the initial yield on such Other Term New TLB Loans (as determined by 7) there shall only be one tranche of New TLB Loans made under the Administrative Agent to be equal to the sum of New TLB Commitments; (x68) the margin above the Eurodollar Rate on any such Other Term Loans and (y) if such Other Term Loans are initially made at a discount additional 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental US Revolving Commitments and the Incremental extensions of credit thereunder shall be ratable with the existing US Revolving Commitments and extensions of credit thereunder; (79) such New Term Loans Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments shall be effected pursuant to one or more joinder agreements (each, a “Joinder Agreement”) executed and delivered by the Incremental Revolving Loans evidenced therebyUS Borrower, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment one or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by more new lenders or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term existing Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate consents have been given as if such events had occurred provided for in Section 12.04(b) for assignees of existing Term Loans or US Revolving Commitments, as of the first day of such period, case may be; and assuming that (X810) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of US Borrower shall deliver or cause to be delivered any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratiocustomary legal opinions or other documents, (iii) except in each case 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 or the New Lenders in connection with those delivered on the Restatement Funding Date under Section 4.1any such transaction, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments including any supplements or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, amendments to the extent not consistent with this AgreementSecurity Documents providing for such New Term Loans, shall New TLB Loans or additional or increased US Revolving Commitments and the extensions of credit thereunder to be reasonably satisfactory to the Administrative Agentsecured thereby.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(fb) On any Increased Amount Date on which Incremental any New Term Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments are effectedbecome effective, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lendersnew lender with a New Term Loan Commitment, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental New TLB Commitment or additional US Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes(each, a Revolving Credit Loan and (c“New Lender”) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental such New Term Loan Commitment, New TLB Commitment or additional US Revolving Commitment and all matters relating each Lender with an increased US Revolving Commitment shall have its US Revolving Commitment adjusted accordingly. The New Term Loans or New TLB Loans to be made under the New Term Loan Commitments or the New TLB Commitments, as applicable, shall be made on or promptly following such effectiveness.
(c) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 4.16 (including to provide transition provisions to provide for any New Term Loans to be ratable with the Term Loans, any provisions to provide for the New TLB Loans and the terms applicable thereto, any additional or increased US Revolving Commitments to share ratably in the extensions of credit under the US Revolving Commitments).
Appears in 1 contract
Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B B-4 Term Loans or commitments to make term loans with terms different from the Tranche B-4 Term Loans, including, for the avoidance of doubt, tranche A Term Loans and the Tranche B Term Loans term loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A B-4 Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B B-4 Term Loans on the Restatement Funding ThirdFourth Amendment Effective Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B B-4 Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lenders:
(i) except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) except with respect to Other Term Loans that contain provisions customarily applicable to tranche A term loans, the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that are incurred prior to the twenty four-month anniversary of the Third Amendment Effective Date and contain provisions customarily applicable to Tranche A B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity All-In Yield of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect All-In Yield for the Tranche A B-4 Term Loans that are 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 then in effect for Tranche A B-4 Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans; provided, further, that this clause (viv) shall not apply to Other Term Loans that are incurred to finance, in whole or in part, a Transformative Acquisition, and
(vi) in connection with respect to Other Term Loans that contain provisions customarily applicable to Tranche B tranche A term loans, if the initial yield on such pricing of Other Term Loans (as determined by the Administrative Agent may be subject to be equal “most favored nations” provisions if and to the sum extent set forth in the Incremental Assumption Agreement for such tranche of (x) the margin above the Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A B-4 Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of the Tranche A B-4 Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A B-4 Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B B-4 Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall not be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B B-4 Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A B-4 Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The US Borrower may, may by written notice to the Administrative Agent elect from time to time to request the establishment of one or more new term loan commitments (A) Incremental “New Term Loan Commitments” and the loans thereunder, and/or (Bthe “New Term Loans”) Incremental or additional or increased US Revolving Commitments by increasing the Total hereunder, in an aggregate amount for all such New Term Loan Commitments and additional or increased US Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all not in excess of which must meet the requirements for assignees under Section 9.6(d)$150,000,000. Such Each such notice shall set forth specify the date (ieach, an “Increased Amount Date”) on which the amount of US Borrower proposes that the Incremental New Term Loan Commitments or Incremental additional or increased US Revolving Commitments being requested (shall be effective, which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) date not less than three Business Days 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 Term Loan Commitments or Incremental additional or increased US Revolving Commitments are requested may elect or decline, in its sole discretion, to become effective (which shall provide or not be less than 10 Business Days nor more than 60 days after to provide the date of such notice) (the “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental same. Such New Term Loan Commitments or Incremental additional or increased US Revolving Commitments from existing Lenders shall become effective as of such Increased Amount Date; provided that (each 1) no Default or Event of which Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments or additional or increased US Revolving Commitments, as the case may be; (2) the proceeds of any New Term Loans 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 or Incremental Revolving Lenders in connection therewith. The used for general corporate purposes of the US Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to its Subsidiaries; (3) the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental the New Term Loans that are additional Tranche A made under New Term Loans Loan Commitments shall be be, identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions for purposes of this Agreement, any Incremental New Term Loans that are shall, upon the making thereof, be deemed to be Term Loans; (4) any such additional Tranche B Term Loans or increased US Revolving Commitments and the extensions of credit thereunder shall be identical to those ratable with the existing US Revolving Commitments and extensions of the Tranche B credit thereunder; (5) such New Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Loan Commitments or additional or increased US Revolving Commitments shall be identical effected pursuant to those of the Revolving Credit Loans one or more joinder agreements (each, a “Joinder Agreement”) executed and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured delivered by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loansUS Borrower, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment one or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by more new lenders or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term existing Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate consents have been given as if such events had occurred provided for in Section 12.04(b) for assignees of existing Term Loans or US Revolving Commitments, as of the first day of such period, case may be; and assuming that (X6) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of US Borrower shall deliver or cause to be delivered any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratiocustomary legal opinions or other documents, (iii) except in each case 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 or the New Lenders in connection with those delivered on the Restatement Funding Date under Section 4.1any such transaction, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments including any supplements or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, amendments to the extent not consistent with this Agreement, shall Security Documents providing for such New Term Loans or additional or increased US Revolving Commitments and the extensions of credit thereunder to be reasonably satisfactory to the Administrative Agentsecured thereby.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(fb) On any Increased Amount Date on which Incremental any New Term Loan Commitments or additional or increased US Revolving Commitments are effectedbecome effective, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together new lender with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental a New Term Loan Commitment or additional US Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes(each, a Revolving Credit Loan and (c“New Lender”) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental such New Term Loan Commitment or additional US Revolving Commitment and all matters relating theretoeach Lender with an increased US Revolving Commitment shall have its US Revolving Commitment adjusted accordingly. The New Term Loans to be made under the New Term Loan Commitments shall be made on or promptly following such effectiveness.
(c) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 4.16 (including to provide transition provisions to provide for any New Term Loans to be ratable with the Term Loans and any additional or increased US Revolving Commitments to share ratably in the extensions of credit under the US Revolving Commitments).
Appears in 1 contract
Incremental Loans and Commitments. (a) The US Borrower may, may by written notice to the Administrative Agent elect from time to time after the Amendment No. 4 Effective Date to request the establishment of one or more new term loan commitments (A“New Term Loan Commitments” and the loans thereunder, the “New Term Loans”), new term loan B commitments (“New TLB Commitments” and the loans thereunder, the “New TLB Loans”) Incremental or additional or increased US Revolving Commitments hereunder, in an aggregate amount such that the aggregate outstanding amount of Term Loans (after giving effect to such New Term Loan Commitments), the New TLB Loans (after giving effect to such New TLB Commitments) and Revolving Commitments (after giving effect to such additional or increased US Revolving Commitments) are not in excess of $700,000,000850,000,000. Each such notice shall specify the date (each, an “Increased Amount Date”) on which the US Borrower proposes that the New Term Loan Commitments, and/or (B) Incremental New TLB Commitments or additional or increased US Revolving Commitments by increasing the Total Revolving Credit Commitmentsshall be effective, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) date not less than three Business Days after the date on which such Incremental Term Loan Commitments notice is delivered to Administrative Agent; provided that any Lender offered or Incremental Revolving Commitments are requested 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) (the “Increased Amount Date”), and (iii) with respect to Incremental any New Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan New TLB Commitments or Incremental additional or increased US Revolving Commitments from existing Lenders (each of which shall be entitled to agree may elect or decline to participate decline, in its sole discretion, to provide or not to provide the same. Such New Term Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments shall become effective as of such Increased Amount Date; provided that (1) and no Default or Event of Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments, New TLB Commitments or additional banksor increased US Revolving Commitments, financial institutions and other institutional lenders who will become Incremental as the case may be; (2) the proceeds of any New Term Lenders or Incremental Revolving Lenders in connection therewith. The Loan Commitments, New TLB Loans shall be used for general corporate purposes of the US Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to its Subsidiaries; (3) the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A New Term Loans made on under the Closing Date. The terms and provisions of any Incremental New Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Loan Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving for purposes of this Agreement, any New Term Loans shall constitute Obligations hereunder and shall shall, upon the making thereof, be secured by deemed to be Term Loans; (4) the Collateral on a pari passu basis with all other Obligations). Without the prior written consent aggregate amount of the Required Lenders:
New TLB Loans (iafter giving effect to the New TLB Commitments) the final maturity date of any Other Term Loans shall be no earlier than the Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall is not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans $400,000,000 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 any permanent reductions of Revolving Commitments of the Other Revolving Commitments after the Amendment No. 1 Effective Date[reserved]; (5) the terms and provisions of the New TLB Loans made under the New TLB Commitments shall be determined by the US Borrower and the lenders providing such New TLB Loans, subject to the approval of the Administrative Agent (such approval not to be unreasonably withheld, delayed or conditioned), and may be different from the terms and provisions of the Term Loans, being referred including but not limited to herein as “OID”pricing, interest rate margins, premiums, rate floors, fees, amortization schedule and maturity (in which such New TLB Loans shall have a final maturity date of not earlier than twelve months after the Second Extended Maturity Date), ; (6) the New TLB Loans shall be repayable in quarterly installments of 0.25% of the principal aggregate amount of such OID divided by the lesser New TLB Loans, with the balance of (A) the Weighted Average Life to Maturity New TLB Loans being payable on the maturity date of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, if the initial yield on such Other Term New TLB Loans (as determined by 7) there shall only be one tranche of New TLB Loans made under the Administrative Agent to be equal to the sum of New TLB Commitments;[reserved]; (x) the margin above the Eurodollar Rate on 8) any such Other Term Loans and (y) if such Other Term Loans are initially made at a discount additional 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental US Revolving Commitments and the Incremental extensions of credit thereunder shall be ratable with the existing US Revolving Commitments and extensions of credit thereunder; (9) such New Term Loans Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments shall be effected pursuant to one or more joinder agreements (each, a “Joinder Agreement”) executed and delivered by the Incremental Revolving Loans evidenced therebyUS Borrower, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment one or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by more new lenders or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term existing Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate consents have been given as if such events had occurred provided for in Section 12.04(b) for assignees of existing Term Loans or US Revolving Commitments, as of the first day of such period, case may be; and assuming that (X10) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of US Borrower shall deliver or cause to be delivered any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratiocustomary legal opinions or other documents, (iii) except in each case 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 or the New Lenders in connection with those delivered on the Restatement Funding Date under Section 4.1any such transaction, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments including any supplements or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, amendments to the extent not consistent with this AgreementSecurity Documents providing for such New Term Loans, shall New TLB Loans or additional or increased US Revolving Commitments and the extensions of credit thereunder to be reasonably satisfactory to the Administrative Agentsecured thereby.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(fb) On any Increased Amount Date on which Incremental any New Term Loan Commitments, New TLB Commitments or additional or increased US Revolving Commitments are effectedbecome effective, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lendersnew lender with a New Term Loan Commitment, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental New TLB Commitment or additional US Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes(each, a Revolving Credit Loan and (c“New Lender”) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental such New Term Loan Commitment, New TLB Commitment or additional US Revolving Commitment and all matters relating each Lender with an increased US Revolving Commitment shall have its US Revolving Commitment adjusted accordingly. The New Term Loans or New TLB Loans to be made under the New Term Loan Commitments or the New TLB Commitments, as applicable, shall be made on or promptly following such effectiveness.
(c) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 4.16 (including to provide transition provisions to provide for the New TLB Loans and the terms applicable thereto, any additional or increased US Revolving Commitments to share ratably in the extensions of credit under the US Revolving Commitments).
Appears in 1 contract
Incremental Loans and Commitments. (a) The 2.4.1 Borrower may, Representative may by written notice to the Administrative Agent from time to time after the Closing Date, request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Credit Commitments by increasing the Total Revolving Credit Commitments, in an aggregate amount not to exceed $10,000,000 from one or more Incremental Term Revolving Credit Lenders and/or (which may include any existing Lender) willing to provide such Incremental Revolving Lenders, all Credit Commitments in their own discretion; provided that each Incremental Revolving Credit Lender shall be subject to the approval of which must meet the requirements for assignees under Section 9.6(d)Administrative Agent. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Credit Commitments being requested (which shall be in minimum increments of $5,000,000 1,000,000 and a minimum amount of $10,000,0005,000,000 or such lesser amount equal to the remaining available amount of Incremental Revolving Credit Commitments), and (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are requested to become effective (which shall not be less than 10 ten (10) Business Days nor more than 60 thirty (30) days after the date of such notice). Promptly following delivery of such notice to Administrative Agent, Administrative Agent shall notify the applicable existing Revolving Credit Lenders and each such Revolving Credit Lender shall have the option (but shall not be required) (to provide a portion of the “Increased Amount Date”)requested Incremental Revolving Credit Commitment equal to the product of its applicable Pro Rata Percentage and the applicable requested Incremental Revolving Credit Commitment. To the extent that any such Lender elects not to provide its ratable portion of the requested Incremental Revolving Credit Commitment, Administrative Agent may request other existing Lenders or other financial institutions to provide such portion of the requested Incremental Revolving Credit Commitment, and (iii) with respect Borrowers shall pay to Incremental Term Loan Commitments, whether Administrative Agent for its own account such Incremental Term Loan Commitments are commitments arrangement fees as agreed to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans by Administrative Agent and the Tranche B Term Loans (such other term loans, the “Other Term Loans”)Borrowers.
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower 2.4.2 Borrowers and each Incremental Term Lender or Incremental Revolving Credit Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Revolving Credit Commitment or of such Incremental Revolving Commitments of each Incremental Term Lender or Credit Lender, and Borrowers shall have paid to such Incremental Revolving Lender. The terms Credit Lender such fees as shall have been agreed to by and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of among the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Borrowers, such Incremental Revolving Loans Credit Lender and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption AgreementAgent. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or Revolving Credit Commitments evidenced thereby as provided for in Section 13.3; provided, that, (i) the Incremental Revolving Credit Commitments shall be implemented as an increase to the Revolving Credit Commitments and the Incremental Term Loans or terms of the Incremental Revolving Loans evidenced thereby, Credit Commitments shall be identical to the then-existing Revolving Credit Commitments and (ii) all minimum Availability requirements or thresholds set forth herein as a specific dollar amount shall be increased by the Administrative Agent and same percentage as the Borrower may revise this Agreement to evidence such amendmentsRevolving Credit Commitments are being increased by the Incremental Revolving Credit Commitments.
(c) 2.4.3 Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.32 2.4 unless (i) on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations subsections 10.2.1 and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) 10.2.2 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, responsible officer of Borrower Representative and (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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) customary legal opinions, board resolutions and other customary closing certificates reasonably requested and documentation as required by the relevant Incremental Assumption Agreement and, to the extent required by Administrative Agent and or Majority Lenders, consistent with those delivered on the Restatement Funding Closing Date under Section 4.1, 10.1 and such additional customary documents and filings (ivincluding amendments to the Mortgages and other Security Documents and title endorsement bringdowns) the as Administrative Agent and each applicable Lender shall have received all fees and expenses owed may reasonably require to assure that the Loans in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) Credit Commitments are secured by the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative AgentCollateral.
(d) 2.4.4 Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the Borrower, may 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchasesany increase in the Revolving Credit Commitments pursuant to this Section 2.4, such the outstanding Revolving Credit Loans will be (if any) are held by existing the Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their new Pro Rata Percentages. This may be accomplished at the discretion of Administrative Agent, following consultation with Borrower Representative, (i) by requiring the outstanding Revolving Credit Commitments after giving effect Loans to be prepaid with the addition proceeds of such Incremental a new Revolving Commitments to the Revolving CommitmentsCredit Loan, (bii) each Incremental Revolving Commitment shall be deemed for all purposes a by causing non-increasing Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Lenders to assign portions of their outstanding Revolving Credit Loan and Loans to new or increasing Revolving Credit Lenders or (ciii) each Incremental Revolving Lender shall become by a Lender with respect to combination of the Incremental Revolving Commitment and all matters relating theretoforegoing.
Appears in 1 contract
Samples: Loan and Security Agreement (Ani Pharmaceuticals Inc)
Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have have
received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The Borrower may, by written notice to the Administrative Agent from time to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental Revolving Commitments by increasing the Total Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date,
, (ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
, (iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
, (iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
) and (v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, ) exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of the first day of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (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 Restatement Funding Closing Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Samples: Credit Agreement (B&G Foods, Inc.)
Incremental Loans and Commitments. (a) The Borrower mayshall have the right, by upon at least five Business Days’ prior written notice to the Administrative Agent from time Agent, to time request (A) Incremental Term Loan Commitments, and/or (B) Incremental increase the Aggregate Revolving Commitments by increasing the Total Revolving Credit Commitmentshereunder, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments establish new or Incremental Revolving Commitments being requested (which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) the date on which such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of hereunder at any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on time after the Closing Date. The terms and provisions of , subject, however, in any Incremental Term Loans that are additional Tranche B Term Loans shall be identical such case, to those satisfaction of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligations). Without the prior written consent of the Required Lendersfollowing conditions precedent:
(i) the final maturity date aggregate amount of any Other Term Loans all such increases during the term of this Agreement after the Closing Date shall be no earlier than the Latest Maturity Date,not exceed $100,000,000;
(ii) no Default or Event of Default shall exist immediately before or immediately after giving effect to such increase on a Pro Forma Basis (assuming for purposes hereof, that the Weighted Average Life to Maturity entire amount of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,Revolving Commitments, as increased, is fully drawn and funded);
(iii) the obligations establishment of the Borrower incremental commitments and its Subsidiaries in respect the extension of credit thereunder are subject to satisfaction of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,conditions to all Credit Extensions in Section 5.02;
(iv) the Other Term Loans such increase shall not receive mandatory prepayments be in a minimum amount of $10 million and integral multiples of $1 million in excess of their ratable share hereunder in accordance with Section 2.10(dthereof (or such lesser amounts as the Administrative Agent may agree),;
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loans, if the initial yield on such Other Term Loans (as determined increase shall be effective only upon receipt by the Administrative Agent to be equal to the sum of (x) the margin above the Eurodollar Rate on additional Commitments in a corresponding amount of such Other Term Loans requested increase from either existing Lenders and/or one or more banks and other financial institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional Commitment) and (y) if such Other Term Loans are initially made at a discount or documentation from each bank and financial institution providing an additional Commitment evidencing its additional Commitment and its obligations under this Agreement in form and substance reasonably acceptable to 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, andAdministrative Agent;
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate all documents (including resolutions of the board of directors of the Borrower and the Guarantors) it may reasonably request relating to that effect dated the corporate or other necessary authority for such date increase and executed by a Responsible Officerthe validity of such increase and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(iivii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such increase on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 8.11 as of the end of the period of the four fiscal quarters most recently completed Fiscal Quarter ending prior to such transaction ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) and certificates required by Sections 5.1 and 5.2(a(b);
(viii) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to if any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of Eurodollar Rate Loans are outstanding at the first day time of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (iii) except as otherwise specified in the applicable Incremental Assumption Agreementincrease, the Administrative Agent Borrower 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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of prepay such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term Eurodollar Rate Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are convert such Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall (such prepayment or conversion to be subject to Section 2.19. If 3.05) as necessary to give effect to the revised commitment amounts and percentages;
(ix) if any Incremental Loans are outstanding at the time of any such increase in loans or commitments, payments and adjustments will be made among the Lenders as necessary to give effect to the revised commitment amounts and percentages;
(x) in the case of an increase in the amount of the Term Loan or another term loan established hereunder after the first principal amortization payment date, adjustments will be made to the schedule of amortization payment, as appropriate, to give effect thereto such that payments of principal, interest and other amounts will be made on the same basis as for the underlying term loan and the principal amortization payments made to the holders of the existing underlying term loan will be not less than that which was payable prior to giving effect to the incremental term loan;
(xi) any term loan established hereunder will have a final maturity date that is coterminous with or later than the final maturity date for the Term Loan and an average life-to-maturity on the date of issuance longer than the average life-to-maturity for the Term Loan;
(xii) any new Lender providing loans and commitments must be reasonably acceptable to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon L/C Issuer and the Swing Line Lender; and
(xiii) lenders providing loans and commitments for such Interest Period and the other economic consequences thereof shall be as set forth increase in the applicable Incremental Term Loan Assumption AgreementAggregate Revolving Commitments will provide a Lender Joinder Agreement and such other agreements reasonably acceptable to the Administrative Agent. In additionconnection with establishment of any such incremental loans or commitments hereunder, to (1) none of the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenderstheir affiliates shall have any obligation to provide any of the incremental loans or commitments without their prior written approval, as applicable, were entitled before such recalculation.
(e2) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by neither the Administrative Agent nor any of the Arrangers shall have any responsibility for arranging the incremental loans or commitments without their prior written consent and subject to ensure or demonstrate that the Lien such conditions, including fee arrangements, as they may provide in connection therewith and security interests granted by the Security Documents continue (3) Schedule 2.01 will be deemed to be perfected under revised to reflect the Uniform Commercial Code Lenders, loans, commitments and pro rata shares or otherwise percentages after giving effect to the extension or establishment of any such Loans or any such Commitmentsthereof.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Incremental Loans and Commitments. (a) The Borrower mayshall have the right, by upon at least five Business Days’ prior written notice to the Administrative Agent from time Agent, to time request increase the Aggregate Revolving Commitments (A) Incremental Term Loan Commitments, and/or (B) the “Incremental Revolving Commitments by increasing Commitments”) hereunder, or establish new or additional term loans hereunder at any time after the Total Revolving Credit CommitmentsClosing Date, from one or more Incremental Term Lenders and/or Incremental Revolving Lenderssubject, all however, in any such case, to satisfaction of which must meet the requirements for assignees under Section 9.6(d). Such notice shall set forth following conditions precedent:
(i) after the Amendment No. 2 Effective Date, the aggregate amount of all such increases and incremental term loans during the Incremental Term Loan Commitments term of this Agreement shall not exceed $250,000,000;
(ii) no Default or Incremental Event of Default shall exist immediately before or immediately after giving effect to such increase or incremental term loans on a Pro Forma Basis (assuming for purposes hereof, that the entire amount of Revolving Commitments being requested Commitments, as increased, and any incremental term loans are fully drawn and funded);
(which iii) the establishment of the incremental commitments or term loans and the extensions of credit thereunder are subject to satisfaction of the conditions to all Credit Extensions in Section 5.02;
(iv) such increase or incremental term loans shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), 10 million and integral multiples of $1 million in excess thereof (ii) the date on which or such Incremental Term Loan Commitments or Incremental Revolving 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 “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental Term Loan Commitments or Incremental 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 or Incremental Revolving Lenders in connection therewith. The Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to the Administrative Agent an Incremental Assumption Agreement and such other documentation lesser amounts as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental Term Loans that are additional Tranche A Term Loans shall be identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions of any Incremental Term Loans that are additional Tranche B Term Loans shall be identical to those of the Tranche B Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Revolving Commitments shall be identical to those of the Revolving Credit Loans and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured by the Collateral on a pari passu basis with all other Obligationsmay agree). 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 Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),;
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A such increase or incremental term loans, if the initial yield on such Other Term Loans (as determined loans shall be effective only upon receipt by the Administrative Agent to be equal to the sum of (x) the margin above the Eurodollar Rate on additional commitments in a corresponding amount of such Other Term Loans requested increase or incremental term loans from either existing Lenders and/or one or more banks and other financial institutions that qualify as Eligible Assignees (it being understood and agreed that no existing Lender shall be required to provide an additional commitment) and (y) if such Other Term Loans are initially made at a discount or documentation from each bank and financial institution providing an additional commitment evidencing its additional commitment and its obligations under this Agreement in form and substance reasonably acceptable to 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, andAdministrative Agent;
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate all documents (including resolutions of the board of directors of the Borrower and the Guarantors) it may reasonably request relating to that effect dated the corporate or other necessary authority for such date increase or incremental term loans and executed by a Responsible Officerthe validity of such increase or incremental term loans and any other matters relevant thereto, all in form and substance reasonably satisfactory to the Administrative Agent;
(iivii) the Borrower shall have delivered to the Administrative Agent a Pro Forma Compliance Certificate demonstrating that, upon giving effect to such increase or incremental term loans on a Pro Forma Basis, the Loan Parties would be in compliance with the financial covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 8.11 as of the end of the period of the four fiscal quarters most recently completed Fiscal Quarter ending prior to such transaction ended for which the Borrower has delivered financial statements pursuant to Section 7.01(a) and certificates required by Sections 5.1 and 5.2(a(b);
(viii) have been delivered, after giving effect to such Incremental if any Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate as if such events had occurred as of SOFR Loans are outstanding at the first day time of such period, and assuming that (X) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratio, (iii) except as otherwise specified in the applicable Incremental Assumption Agreementincrease, the Administrative Agent Borrower 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 Restatement Funding Date under Section 4.1, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of prepay such Incremental Term Loan Commitments or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, to the extent not consistent with this Agreement, shall be reasonably satisfactory to the Administrative Agent.
(d) 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 hereunder of outstanding Tranche A Term SOFR Loans or Tranche B convert such Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar SOFR Loans to Base Rate Loans required by the preceding sentence shall (such prepayment or conversion to be subject to Section 2.19. If 3.05) as necessary to give effect to the revised commitment amounts and percentages;
(ix) if any Incremental Term Loan Loans are outstanding at the time of any such increase in loans or commitments, payments and adjustments will be made among the Lenders as necessary to give effect to the revised commitment amounts and percentages;
(x) in the case of an incremental term loan established hereunder after the first principal amortization payment date of another term loan, adjustments will be made to the schedule of amortization payment, as appropriate, to give effect thereto such that payments of principal, interest and other amounts will be made on the same basis as for the underlying term loan and the principal amortization payments made to the holders of the existing underlying term loan will be not less than that which was payable prior to giving effect to such incremental term loan;
(xi) any term loan established hereunder will have a final maturity date that is coterminous with or later than the Maturity Date and an average life-to-maturity on the date of issuance longer than the average life-to-maturity for any existing term loan;
(xii) any new Lender providing loans and commitments must be reasonably acceptable to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon L/C Issuer and the Swing Line Lender; and
(xiii) lenders providing loans and commitments for such Interest Period and the other economic consequences thereof shall be as set forth incremental term loans or increase in the applicable Incremental Term Loan Assumption AgreementAggregate Revolving Commitments will provide a Lender Joinder Agreement and such other agreements reasonably acceptable to the Administrative Agent. In additionconnection with establishment of any such incremental loans or commitments hereunder, to (1) none of the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenderstheir affiliates shall have any obligation to provide any of the incremental loans or commitments without their prior written consent, as applicable, were entitled before such recalculation.
(e2) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by neither the Administrative Agent nor any of the Arrangers shall have any responsibility for arranging the incremental loans or commitments without their prior written consent and subject to ensure or demonstrate that the Lien such conditions, including fee arrangements, as they may provide in connection therewith and security interests granted by the Security Documents continue (3) Schedule 2.01 will be deemed to be perfected under revised to reflect the Uniform Commercial Code Lenders, loans, commitments and pro rata shares or otherwise percentages after giving effect to the extension or establishment of any such Loans or any such Commitmentsthereof.
(f) On any Increased Amount Date on which Incremental Revolving Commitments are effected, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (c) each Incremental Revolving Lender shall become a Lender with respect to the Incremental Revolving Commitment and all matters relating thereto.
Appears in 1 contract
Incremental Loans and Commitments. (a) The US Borrower may, may by written notice to the Administrative Agent elect from time to time to request the establishment of one or more new term loan commitments (A) Incremental “New Term Loan Commitments” and the loans thereunder, and/or (Bthe “New Term Loans”) Incremental or additional or increased US Revolving Commitments by increasing the Total hereunder, in an aggregate amount for all such New Term Loan Commitments and additional or increased US Revolving Credit Commitments, from one or more Incremental Term Lenders and/or Incremental Revolving Lenders, all not in excess of which must meet the requirements for assignees under Section 9.6(d)$85,000,000. Such Each such notice shall set forth specify the date (ieach, an “Increased Amount Date”) on which the amount of US Borrower proposes that the Incremental New Term Loan Commitments or Incremental additional or increased US Revolving Commitments being requested (shall be effective, which shall be in minimum increments of $5,000,000 and a minimum amount of $10,000,000), (ii) date not less than three Business Days 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 Term Loan Commitments or Incremental additional or increased US Revolving Commitments are requested may elect or decline, in its sole discretion, to become effective (which shall provide or not be less than 10 Business Days nor more than 60 days after to provide the date of such notice) (the “Increased Amount Date”), and (iii) with respect to Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Tranche A Term Loans, additional Tranche B Term Loans or commitments to make term loans with terms different from the Tranche A Term Loans and the Tranche B Term Loans (such other term loans, the “Other Term Loans”).
(b) The Borrower may seek Incremental same. Such New Term Loan Commitments or Incremental additional or increased US Revolving Commitments from existing Lenders shall become effective as of such Increased Amount Date; provided that (each 1) no Default or Event of which Default shall exist on such Increased Amount Date before or after giving effect to such New Term Loan Commitments or additional or increased US Revolving Commitments, as the case may be; (2) the proceeds of any New Term Loans 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 or Incremental Revolving Lenders in connection therewith. The used for general corporate purposes of the US Borrower and each Incremental Term Lender or Incremental Revolving Lender shall execute and deliver to its Subsidiaries; (3) the Administrative Agent an Incremental Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment or Incremental Revolving Commitments of each Incremental Term Lender or Incremental Revolving Lender. The terms and provisions of any Incremental the New Term Loans that are additional Tranche A made under New Term Loans Loan Commitments shall be be, identical to those of the Tranche A Term Loans made on the Closing Date. The terms and provisions for purposes of this Agreement, any Incremental New Term Loans that are shall, upon the making thereof, be deemed to be Term Loans; (4) any such additional Tranche B Term Loans or increased US Revolving Commitments and the extensions of credit thereunder shall be identical to those ratable with the existing US Revolving Commitments and extensions of the Tranche B credit thereunder; (5) such New Term Loans on the Restatement Funding Date. The terms and provisions of any Incremental Revolving Loans and Incremental Loan Commitments or additional or increased US Revolving Commitments shall be identical effected pursuant to those of the Revolving Credit Loans one or more joinder agreements (each, a “Joinder Agreement”) executed and Revolving Credit Commitments made on the Closing Date. The terms and provisions of the Other Term Loans shall be identical to those of the Tranche A Term Loans or Tranche B Term Loans, as applicable, except as otherwise set forth herein or in the Incremental Assumption Agreement, and any such terms not consistent with those of such applicable Loans, shall be reasonably satisfactory to the Administrative Agent (provided that, notwithstanding anything to the contrary contained herein or in any other Loan Document, the Incremental Term Loans and Incremental Revolving Loans shall constitute Obligations hereunder and shall be secured delivered by the Collateral on a pari passu basis with all other Obligations). 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 Latest Maturity Date,
(ii) the Weighted Average Life to Maturity of the Other Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Tranche of Term Loans hereunder which has the longest Weighted Average Life to Maturity,
(iii) the obligations of the Borrower and its Subsidiaries in respect of the Other Term Loans shall not be secured by any property or assets of the Borrower or any of its Subsidiaries other than the Collateral and shall not be guaranteed by any Subsidiaries of the Borrower other than the Subsidiary Guarantors,
(iv) the Other Term Loans shall not receive mandatory prepayments in excess of their ratable share hereunder in accordance with Section 2.10(d),
(v) in connection with Other Term Loans that contain provisions customarily applicable to Tranche A term loansUS Borrower, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four, exceeds the Applicable Margin then in effect for Tranche A Term Loans that are 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 then in effect for Tranche A Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans, and
(vi) in connection with Other Term Loans that contain provisions customarily applicable to Tranche B term loans, 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 Eurodollar Rate on such Other Term Loans 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”), the amount of such OID divided by the lesser of (A) the Weighted Average Life to Maturity of such Other Term Loans and (B) four; provided that in determining the margin above the Eurodollar Rate or the Base Rate, if the Eurodollar Rate or the Base Rate in respect of any Other Term Loans includes a floor different from the applicable floor in respect of the Eurodollar Rate or the Base Rate applicable to the Tranche B Term Loans, such differential amount shall be equated to interest margin for purposes of determining Yield Differential) exceeds the Applicable Margin then in effect for Tranche B Term Loans that are 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 then in effect for Tranche B Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Other Term Loans. The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental 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 or the Incremental Revolving Commitments and the Incremental Term Loans or the Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrower may revise this Agreement to evidence such amendments.
(c) Notwithstanding the foregoing, no Incremental Term Loan Commitment one or Incremental Revolving Commitment shall become effective under this Section 2.32 unless on the date of such effectiveness, (i) the conditions set forth in Section 4.2(a) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then the only representations and warranties that will be required to be true and correct in all material respects as a condition to funding on the applicable extension of credit date shall be (x) the Specified Representations and (y) such of the representations and warranties made by more new lenders or on behalf of the applicable acquired company or business (or the seller thereof) in the applicable acquisition agreement as are material to the interests of the Lenders, but only to the extent that the Borrower or any Subsidiary Guarantor has the right to terminate the obligations of the Borrower or any Subsidiary Guarantor under such acquisition agreement or not consummate such acquisition as a result of the inaccuracy of such representations or warranties in such acquisition agreement) and 4.2(b) (provided that, if such extension of credit is used to finance a Permitted Acquisition, then such Incremental Term existing Lenders or Incremental Revolving Lender, as applicable, may agree that Section 4.2(b) shall not apply to such extension of credit (unless the Default or Event of Default arises from Section 7(a) or (f))) shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Responsible Officer, (ii) the Borrower would be in compliance with the covenants set forth in Section 6.1 and the Consolidated Senior Secured Leverage Ratio would be less than or equal to 4.00 to 1.00 as of the most recently completed Fiscal Quarter ending prior to such transaction for which the financial statements and certificates required by Sections 5.1 and 5.2(a) have been delivered, after giving effect to such Incremental Term Loan Commitments transaction and to any other event occurring after such period as to which pro forma recalculation is appropriate consents have been given as if such events had occurred provided for in Section 12.04(b) for assignees of existing Term Loans or US Revolving Commitments, as of the first day of such period, case may be; and assuming that (X6) the Incremental Revolving Commitments are fully drawn and (Y) the cash proceeds of US Borrower shall deliver or cause to be delivered any Incremental Revolving Loans and Incremental Term Loans are not netted from Consolidated Total Debt for purposes of calculating such Consolidated Senior Secured Leverage Ratiocustomary legal opinions or other documents, (iii) except in each case 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 or the New Lenders in connection with those delivered on the Restatement Funding Date under Section 4.1any such transaction, (iv) the Administrative Agent and each applicable Lender shall have received all fees and expenses owed in respect of such Incremental Term Loan Commitments including any supplements or Incremental Revolving Commitment and (v) the terms and documentation in respect of such Incremental Term Loan Commitments or Incremental Revolving Commitment, amendments to the extent not consistent with this Agreement, shall Security Documents providing for such New Term Loans or additional or increased US Revolving Commitments and the extensions of credit thereunder to be reasonably satisfactory to the Administrative Agentsecured thereby.
(d) 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 hereunder of outstanding Tranche A Term Loans or Tranche B Term Loans, as applicable, on a pro rata basis. This may be accomplished by requiring each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans to be converted into Base Rate Loans on the date of each Incremental Term Loan, or by allocating a portion of each Incremental Term Loan to each outstanding borrowing of Tranche A Term Loans or Tranche B Term Loans, as applicable, that are Eurodollar Loans on a pro rata basis. Any conversion of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans to Base Rate Loans required by the preceding sentence shall be subject to Section 2.19. If any Incremental Term Loan is to be allocated to an existing Interest Period for a borrowing of Tranche A Term Loans or Tranche B Term Loans that are Eurodollar Loans, then the interest rate thereon for such Interest Period and the other economic consequences thereof shall be as set forth in the applicable Incremental Term Loan Assumption Agreement. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.3(a) or 2.3(b), as applicable, 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 Tranche A Term Lenders or Tranche B Term Lenders, as applicable, were entitled before such recalculation.
(e) The Loans and Commitments extended or established pursuant to this Section 2.32 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. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure or demonstrate that the Lien and security interests granted by the Security Documents continue to be perfected under the Uniform Commercial Code or otherwise after giving effect to the extension or establishment of any such Loans or any such Commitments.
(fb) On any Increased Amount Date on which Incremental any New Term Loan Commitments or additional or increased US Revolving Commitments are effectedbecome effective, subject to the satisfaction of the foregoing terms and conditions, (a) each of the Revolving Credit Lenders shall assign to each of the Incremental Revolving Lenders, and each of the Incremental Revolving Lenders shall purchase from each of the Revolving Credit Lenders, at the principal amount thereof (together new lender with accrued interest), such interests in the Revolving Credit Loans outstanding on such Increased Amount Date as shall be necessary in order that, after giving effect to all such assignments and purchases, such Revolving Credit Loans will be held by existing Revolving Credit Lenders and Incremental Revolving Lenders ratably in accordance with their Revolving Credit Commitments after giving effect to the addition of such Incremental Revolving Commitments to the Revolving Commitments, (b) each Incremental a New Term Loan Commitment or additional US Revolving Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes(each, a Revolving Credit Loan and (c“New Lender”) each Incremental Revolving Lender shall become a Lender hereunder with respect to the Incremental such New Term Loan Commitment or additional US Revolving Commitment and all matters relating theretoeach Lender with an increased US Revolving Commitment shall have its US Revolving Commitment adjusted accordingly. The New Term Loans to be made under the New Term Loan Commitments shall be made on or promptly following such effectiveness.
(c) Each Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement as may be necessary or appropriate, in the opinion of the Administrative Agent, to effect the provisions of this Section 4.16 (including to provide transition provisions to provide for any New Term Loans to be ratable with the Term Loans and any additional or increased US Revolving Commitments to share ratably in the extensions of credit under the US Revolving Commitments).
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