Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On the terms and subject to the conditions set forth herein and in the Credit Agreement and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, (i) each Incremental Tranche A Term Lender agrees, severally and not jointly, to make, on the Effective Date, an Incremental Tranche A Term Loan to the U.S. Borrower in an aggregate principal amount not to exceed its Incremental Tranche A Term Loan Commitment and (ii) each Incremental Revolving Credit Lender agrees, severally and not jointly, to provide, on the Effective Date, Incremental Revolving Credit Commitments to the applicable Borrower or Borrowers in an aggregate principal amount not to exceed its Incremental Revolving Credit Commitments hereunder. Amounts paid or prepaid in respect of the Incremental Tranche A Term Loans may not be reborrowed. (b) The Incremental Tranche A Term Loan Commitment of each Incremental Tranche A Term Lender shall automatically terminate upon the earlier of (i) the making of the Incremental Tranche A Term Loans on the Effective Date and (ii) 5:00 p.m., New York City time, on March 4, 2019. (c) On the Effective Date (i) the U.S. Borrower shall use the proceeds of the Incremental Tranche A Term Loans solely to prepay the aggregate principal amount of the Tranche A Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Tranche A Loans”), (ii) the Borrowers shall use the proceeds of new Revolving Loans to be made by the Incremental Revolving Credit Lenders in accordance with their Incremental Revolving Credit Commitments, together with cash on hand, to (A) prepay all of the Revolving Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest on the Existing Tranche A Loans and the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all Revolving Credit Commitments in effect under the Credit Agreement immediately prior to the Effective Date shall be terminated and any Letters of Credit outstanding under such Revolving Credit Commitments shall, as of the Effective Date, be deemed outstanding under the Incremental Revolving Credit Commitments.
Appears in 1 contract
Sources: Incremental Assumption Agreement (Cbre Group, Inc.)
Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On the terms and subject Any Borrower may, by written notice to the conditions set forth herein and in the Credit Agreement and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, (i) each Incremental Tranche A Term Lender agrees, severally and not jointly, to makeAdministrative Agent, on one or more occasions during the Effective Date, an term of this Agreement request Incremental Tranche A Term Loan to the U.S. Borrower Commitments or Incremental Revolving Credit Commitments, as applicable, in an aggregate principal amount not to exceed its the Incremental Tranche A Facility Amount in effect at such time from one or more Incremental Term Loan Commitment and (ii) each Lenders and/or Incremental Revolving Credit Lender agreesLenders, severally and not jointly, all of which must be Eligible Assignees. Such notice shall set forth (i) the identity of the Borrower or Borrowers to provide, on which the Effective Date, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments to the applicable Borrower or Borrowers in an aggregate principal amount not to exceed its Incremental Revolving Credit Commitments hereunder. Amounts paid or prepaid in respect of the Incremental Tranche A Term Loans may not shall be reborrowed.
(b) The Incremental Tranche A Term Loan Commitment of each Incremental Tranche A Term Lender shall automatically terminate upon the earlier of (i) the making of the Incremental Tranche A Term Loans on the Effective Date and (ii) 5:00 p.m., New York City time, on March 4, 2019.
(c) On the Effective Date (i) the U.S. Borrower shall use the proceeds of the Incremental Tranche A Term Loans solely to prepay the aggregate principal amount of the Tranche A Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Tranche A Loans”)extended, (ii) the Borrowers shall use amount of the proceeds of new Revolving Loans to be made by the Incremental Term Loan Commitments and/or Incremental Revolving Credit Lenders Commitments being requested (which shall be in accordance a minimum increment equal to the Borrowing Multiple and a minimum amount of the Borrowing Minimum or equal to the remaining Incremental Amount), (iii) if the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are to be provided in a Designated Foreign Currency, the applicable currency, (iv) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit 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 unless otherwise agreed to by the Administrative Agent), (v) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional U.S. Term Loans of any Class, commitments to make additional European Term Loans or commitments to make term loans with their terms different from the Term Loans (“Other Term Loans”), and (vi) in the case of Incremental Revolving Credit Commitments, together with cash whether such Incremental Revolving Credit Commitments are Revolving Credit Commitments or commitments to make Revolving Loans on handterms, to (A) prepay all of Borrowers or in currencies different from the Revolving Loans outstanding (“Other Revolving Loans”, and such commitments, “Other Revolving Credit Commitments”). Except with respect to the Specified Incremental Revolving Amount, the Borrowers may elect to request Commitments and incur Indebtedness under this Section 2.23 in reliance on the Credit Agreement immediately Incremental Ratio Amount prior to the Effective Date Incremental Dollar Amount and the Borrower may incur Indebtedness pursuant to clauses (i), (l), (w) or (x) of Section 6.01 and in reliance on the “Existing Revolving Loans”Incremental Dollar Amount, and in the event that such Indebtedness is concurrently incurred pursuant to both the (i) Incremental Ratio Amount or clauses (i), (l), (w) or (x) of Section 6.01 and (Bii) pay all accrued but unpaid interest on the Existing Tranche A Loans and Incremental Dollar Amount, the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all Revolving Credit Commitments in effect under the Credit Agreement immediately prior amount of such Indebtedness incurred pursuant to the Effective Date shall Incremental Dollar Amount will be terminated and any Letters disregarded for purposes of Credit outstanding under calculating the Total Secured Leverage Ratio or the Fixed Charge Coverage Ratio in connection with the incurrence of such Revolving Credit Commitments shall, as of the Effective Date, be deemed outstanding under Indebtedness pursuant to the Incremental Revolving Credit CommitmentsRatio Amount or pursuant to clauses (i), (l), (w) or (x) of Section 6.01.
Appears in 1 contract
Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On the terms and subject Any Borrower may, by written notice to the conditions set forth herein and in the Credit Agreement and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, (i) each Incremental Tranche A Term Lender agrees, severally and not jointly, to makeAdministrative Agent, on one or more occasions during the Effective Date, an term of this Agreement request Incremental Tranche A Term Loan to the U.S. Borrower Commitments or Incremental Revolving Credit Commitments, as applicable, in an aggregate principal amount not to exceed its the Incremental Tranche A Facility Amount in effect at such time from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the identity of the Borrower or Borrowers to which the Incremental Term Loan Commitment Commitments and/or Incremental Revolving Credit Commitments shall be extended, (ii) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in a minimum increment equal to the Borrowing Multiple and a minimum amount of the Borrowing Minimum or equal to the remaining Incremental Amount), (iii) if the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are to be provided in a Designated Foreign Currency, the applicable currency, (iv) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit 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 unless otherwise agreed to by the Administrative Agent), (v) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional U.S. Term Loans of any Class, commitments to make additional European Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”), and (vi) in the case of Incremental Revolving Credit Commitments, whether such Incremental Revolving Credit Commitments are Revolving Credit Commitments or commitments to make Revolving Loans on terms, to Borrowers or in currencies different from the Revolving Loans (“Other Revolving Loans”, and such commitments, “Other Revolving Credit Commitments”). Except with respect to the Specified Incremental Revolving Amount, the Borrowers may elect to request Commitments and incur Indebtedness under this Section 2.23 in reliance on the Incremental Ratio Amount prior to the Incremental Dollar Amount and the Borrower may incur Indebtedness pursuant to clauses (i), (l), (w) or (x) of Section 6.01 and in reliance on the Incremental Dollar Amount, and in the event that such Indebtedness is concurrently incurred pursuant to both the (i) Incremental Ratio Amount or clauses (i), (l), (w) or (x) of Section 6.01 and (ii) each the Incremental Revolving Credit Lender agreesDollar Amount, severally and not jointly, to provide, on the Effective Date, Incremental Revolving Credit Commitments amount of such Indebtedness incurred pursuant to the applicable Borrower Incremental Dollar Amount will be disregarded for purposes of calculating the Total Secured Leverage Ratio or Borrowers the Fixed Charge Coverage Ratio in an aggregate principal amount not connection with the incurrence of such Indebtedness pursuant to exceed its Incremental Revolving Credit Commitments hereunder. Amounts paid or prepaid in respect of the Incremental Tranche A Term Loans may not be reborrowedRatio Amount or pursuant to clauses (i), (l), (w) or (x) of Section 6.01.
(b) The applicable Borrower or Borrowers may seek Incremental Tranche A Term Loan Commitments and/or Incremental Revolving Credit 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 and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower or Borrowers and each Incremental Term Lender and/or Incremental Revolving Credit Lender, as applicable, 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 and/or the Incremental Revolving Credit Commitment of such Person. The terms and provisions of (x) the Incremental Term Loans shall be identical to those of the Term Loans of the applicable Class and (y) Incremental Revolving Credit Commitments shall be identical to those of the Revolving Credit Commitments of the applicable Class, in each case except as otherwise set forth herein or in the Incremental Tranche A Term Lender shall automatically terminate upon Assumption Agreement. Without the earlier prior written consent of the Required Lenders, (i) the making final maturity date of any Other Revolving Loans shall be no earlier than the Incremental Tranche A Revolving Credit Maturity Date with respect to any Class of Revolving Loans, (ii) [reserved], (iii) in the case of Other Term Loans incurred on or prior to the date that is 18 months after the 2016 Restatement Date, 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 EURIBO Rate or the Adjusted Term SOFR on such Other Term Loans (which shall be increased by the amount that any “floor” applicable to such Other Term Loans on the Effective Date date such Other Term Loans are made would exceed the EURIBO Rate or the Adjusted Term SOFR, as applicable, that would be in effect for a three-month Interest Period commencing on such date) and (iiy) 5:00 p.m.if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or any Subsidiary for doing so (the amount of such discount or fee, New York City timeexpressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (1) the average life to maturity of such Other Term Loans and (2) four) exceeds by more than 50 basis points the sum of (A) the margin then in effect for Term Eurocurrency Loans or Term SOFR Loans, as applicable, of any Class (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Margin then in effect for such Term Loans of such Class increased by the amount that any “floor” applicable to such Loans of such Class on March 4the date such Other Term Loans are made would exceed the EURIBO Rate or the Adjusted Term SOFR, 2019as applicable that would be in effect for a three-month Interest Period commencing on such date) plus (B) the amount of OID initially paid in respect of the Term Loans of such Class divided by the lesser of (x) the average life to maturity of the Term Loans of such Class as in effect at the time such Term Loans were made as determined by the Administrative Agent in its sole discretion and (y) four (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin (or, in the case of that portion, if any, of the Yield Differential resulting from the “floor” applicable to such Other Term Loans being greater than that applicable to such Class of Eurocurrency Loans or Term SOFR Loans, as applicable on the date such Other Term Loans are made, at the request of the Borrowers and in the discretion of the Administrative Agent, the “floor”) then in effect for each such affected Class of Term Loans shall automatically be increased by the Yield Differential (or relevant portion thereof), effective upon the making of the Other Term Loans, and (iv) the Applicable Margin with respect to any Incremental Revolving Loans shall be equal to the Applicable Margin for the existing Revolving Loans; provided that the Applicable Margin of the existing Revolving Loans may be increased to equal the Applicable Margin for such Incremental Revolving Loans to satisfy the requirements of this clause (iv). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Notwithstanding anything to the contrary herein, 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 and/or Incremental Revolving Credit Commitment and the Incremental Term Loans and/or Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) On Notwithstanding the Effective Date foregoing, without the consent of the Required Lenders, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless (i) on the U.S. date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the applicable Borrower or Borrowers, (ii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall use have received (with sufficient copies for each of the Incremental Term Lenders and/or Incremental Revolving Credit Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement (or, if the proceeds of any Incremental Term Loan Commitment or Incremental Revolving Credit Commitment will be used to consummate a Permitted Acquisition, Section 4 of Amendment No. 6), (iii) the Administrative Agent shall have received from the applicable Borrower or Borrowers all fees and other amounts due and payable in respect of the Incremental Tranche A Term Loan Commitments and/or Incremental Revolving Credit Commitments, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by such Borrower or Borrowers hereunder or under any other Loan Document and (iv) except for any Incremental Revolving Commitments requested in reliance on the Specified Incremental Revolving Amount, Holdings shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that to the extent the proceeds of Loans made pursuant to any Incremental Term Loan Commitment or Incremental Revolving Credit Commitment will be used to consummate a Limited Condition Acquisition, notwithstanding anything to the contrary in Section 4.01, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be required to be satisfied, at the option of Holdings, on the date on which definitive agreements with respect to such Limited Condition Acquisition are entered into or on the effective date of such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments.
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the applicable Borrower or Borrowers, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans solely (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. With respect to prepay Incremental Term Loans, this may be accomplished by converting each outstanding Term SOFR Borrowing into an ABR Term Borrowing on the date of each Incremental Term Loan. With respect to Incremental Revolving Commitments, this may be accomplished by (i) requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) causing Lenders to assign portions of their outstanding Revolving Loans to Incremental Revolving Credit Lenders or (iii) any combination of the foregoing. Any conversion of Term SOFR Loans to Daily Rate Loans contemplated in the preceding two sentences shall be subject to Section 2.16. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) or (ii), 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 of the Tranche A Loans outstanding under the Credit Agreement immediately prior applicable Class on a pro rata basis to the Effective Date (extent necessary to avoid any reduction in the “Existing Tranche A Loans”), (ii) the Borrowers shall use the proceeds of new Revolving Loans amortization payments to be made by the Incremental Revolving Credit which such Lenders in accordance with their Incremental Revolving Credit Commitments, together with cash on hand, to (A) prepay all of the Revolving Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest on the Existing Tranche A Loans and the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all Revolving Credit Commitments in effect under the Credit Agreement immediately prior to the Effective Date shall be terminated and any Letters of Credit outstanding under were entitled before such Revolving Credit Commitments shall, as of the Effective Date, be deemed outstanding under the Incremental Revolving Credit Commitmentsrecalculation.
Appears in 1 contract
Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On The Borrower may, at any time after the terms Closing Date, at the Borrower’s written request to the Applicable Administrative Agent, request that one or more Lenders and/or other financial institutions that will become Lenders hereunder (x) make incremental term loans hereunder either through adding such incremental term loans to the outstanding principal amount of the B Term Loans hereunder or any Tranche of Incremental Term Loans then outstanding or through a separate Tranche of Term Loans hereunder (such incremental term loans, in either case, “Incremental Term Loans” and the commitments to which such Incremental Term Loans relate, the “Incremental Term Loan Commitments”) and/or (y) increase the aggregate amount of the Revolving Credit Commitments through adding incremental revolving credit commitments to the then outstanding amount of Revolving Credit Commitments hereunder (such revolving credit commitments, “Incremental Revolving Credit Commitments”); provided that:
(i) (x) the aggregate principal amount of any requested Incremental Term Loans shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof and (y) the aggregate amount of any requested Incremental Revolving Credit Commitments shall be in a minimum amount of $5,000,000 and in integral multiples of $1,000,000 in excess thereof;
(ii) the Loan Parties shall execute and deliver such agreements, instruments, documents, resolutions, opinions of counsel, solvency certificate and officer’s certificates and take such other actions as may be reasonably requested by the Applicable Administrative Agent in connection with such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments;
(iii) subject to the conditions set forth herein last paragraph of this Section 2.19(a), no Default or Event of Default shall have occurred and be continuing or would occur after giving effect to the incurrence of (x) the respective Incremental Term Loans pursuant to such Incremental Term Loan Commitments and the application of proceeds therefrom and/or (y) the respective Incremental Revolving Credit Commitments or any Revolving Loans to be made in connection therewith and the Credit Agreement and in reliance upon application of proceeds therefrom;
(iv) subject to the last paragraph of this Section 2.19(a), all of the representations and warranties set forth contained herein and in the other Loan DocumentsDocuments are true and correct in all material respects (it being understood that (x) any representation or warranty that is qualified by materiality or Material Adverse Effect shall be required to be true and correct in all respects and (y) any representation or warranty which by its terms is made as of a specified date shall be required to be true and correct in all material respects (or all respects, as the case may be) as of such specified date);
(iv) each Incremental Tranche A Term Lender agrees, severally and not jointly, to makethe Borrower shall be in compliance, on a Pro Forma Basis (and assuming the Effective Date, an full utilization of the respective Incremental Tranche A Term Loan to the U.S. Borrower in an aggregate principal amount not to exceed its Incremental Tranche A Term Loan Commitment and (ii) each Commitments and/or Incremental Revolving Credit Lender agreesCommitments), severally and not jointlyas of the last day of the most recently ended Fiscal Quarter on or prior to the date of the respective incurrence for which Financial Statements have been delivered hereunder, to provide, on the Effective Date, as if such Incremental Term Loans and/or Incremental Revolving Credit Commitments had been incurred (and, if incurred to finance a Permitted Acquisition, as if such Permitted Acquisition had been consummated) on the applicable Borrower first day of the four Fiscal Quarter period ended on the last day of such most recently ended Fiscal Quarter (and after giving effect to any other Pro Forma Transaction that is consummated after the beginning of the most recently ended Fiscal Quarter but prior to or Borrowers simultaneously with the borrowing of such Incremental Term Loans and/or the incurrence of such Incremental Revolving Credit Commitments), with (x) a Consolidated Secured Leverage Ratio of no greater than 4.00:1.00 and (y) a Consolidated Total Leverage Ratio of no greater than 5.75:1.00;
(vi) (A) in an aggregate principal amount not to exceed its the case of Incremental Revolving Credit Commitments hereunder. Amounts paid incurred pursuant to this Section 2.19, the terms and conditions of such Incremental Revolving Credit Commitments (and any Revolving Loans to be made pursuant thereto, including as to maturity and pricing (including interest rate, interest rate margins, rate floors (if any) and unused fees, but excluding underwriting fees, arrangement fees, upfront fees and other similar fees) shall be the same as the Revolving Credit Commitments and (B) in the case of Incremental Term Loans made under this Section 2.19, such Incremental Term Loans shall have an Incremental Term Loan Maturity Date no earlier than the Scheduled B Term Loan Maturity Date and shall have a Weighted Average Life to Maturity no shorter than the then remaining Weighted Average Life to Maturity of the B Term Loans; provided, however, if the new Incremental Term Loans to be made pursuant this Section 2.19 are, at the Borrower’s election, to be added to the aggregate outstanding principal amount of the B Term Loans or prepaid any then outstanding Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same Maturity Date as the B Term Loans or such Tranche of Incremental Term Loans, as the case may be, and shall have the same scheduled amortization dates as the B Term Loans or such Tranche of Incremental Term Loans, as the case may be, pursuant to Section 2.6(c) or the respective Incremental Amendment, and with the amount of each scheduled amortization payment applicable to such new Incremental Term Loans to be the same (on a proportionate basis) as was previously applicable to the remaining scheduled amortization payments of the B Term Loans or such Tranche or Incremental Term Loans, as the case may be, thereby increasing the amount of each then remaining scheduled amortization payment of the B Term Loans or such Tranche of Incremental Term Loans, as the case may be, pursuant to Section 2.6(c) or the respective Incremental Amendment proportionately;
(vii) if the Effective Yield for any new Tranche of Incremental Term Loans made under this Section 2.19 determined as of the initial funding date for such Tranche of Incremental Term Loans exceeds the Effective Yield relating to the B Term Loans immediately prior to the making of such Tranche of Incremental Term Loans by more than 0.50%, then the Effective Yield relating to the B Term Loans shall be adjusted to be equal to the Effective Yield relating to such Tranche of Incremental Term Loans minus 0.50%;
(viii) in the case of any Incremental Term Loans that are to be made pursuant to (and to constitute a part of) the B Term Loans or any then outstanding Tranche of Incremental Term Loans, (I) such new Incremental Term Loans shall have the same Applicable Margins as the Tranche of Term Loans to which such Incremental Term Loans shall be added; provided that, if the Applicable Margins for such new Incremental Term Loans are greater than the Applicable Margins for the Tranche of Term Loans to which such new Incremental Term Loans shall be added, the Applicable Margins for such Tranche of Term Loans shall be increased by an amount necessary to eliminate such deficiency, and (II) subject to preceding clause (I), the Effective Yield applicable to such new Incremental Term Loans shall be determined by the Borrower and the Lenders providing such Incremental Term Loans; provided that, in the case of any Incremental Term Loans that are to be added to (and constitute a part of) the B Term Loans, if the Effective Yield of such new Incremental Term Loans exceeds the Effective Yield for the B Term Loans, then the Effective Yield for the B Term Loans shall be increased (to the extent necessary) such that the Effective Yield thereof is not less than the Effective Yield of such new Incremental Term Loans minus 0.50%;
(ix) except as expressly set forth above, prior to the date on which all B Term Loans have been repaid in full, all other terms and conditions with respect to any Incremental Term Loans made pursuant to this Section 2.19 shall be the same as the terms and conditions applying to the B Term Loans, provided that any Tranche of Incremental Term Loans may provide that different terms and conditions apply after such date;
(x) the Borrower shall have demonstrated to the Applicable Administrative Agent’s reasonable satisfaction that the full amount of the Incremental Tranche A Term Loans and/or Incremental Revolving Credit Commitments (assuming the full utilization thereof) to be incurred may not be reborrowed.incurred without violating the terms of any other material Indebtedness of the Borrower or any of its Subsidiaries or the documentation governing any such Indebtedness (excluding any such Indebtedness that is to be refinanced in whole with the proceeds of such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments in compliance with this Agreement and the other Loan Documents); and
(xi) the Borrower shall have delivered to the Applicable Administrative Agent a certificate executed by a Responsible Officer of the Borrower, (A) certifying compliance with the requirements of (x) in the case of Incremental Term Loans, preceding clauses (i) through (x), inclusive, and (y) in the case of Incremental Revolving Credit Commitments, preceding clauses (i) through (vi), inclusive, and (x) and (B) containing the calculations (in reasonable detail) required by (x) in the case of Incremental Term Loans, the preceding clauses (v), (vi), (vii), (viii) and, if applicable, (x) and (y) in the case of Incremental Revolving Credit Commitments, the preceding clauses (v), (vi) and, if applicable, (x). Any request under this Section 2.19 shall be submitted by the Borrower in writing to the Applicable Administrative Agent (which shall promptly forward copies to the Lenders for which it is acting as an Administrative Agent). The Borrower may also specify any fees offered to those Lenders and other financial institutions that will become Lenders hereunder (the “Increasing Lenders”) that agree to provide Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments (which fees, as it relates to any Lender or other financial institution that will become a Lender, may be variable based upon the amount of Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments that any such Lender or other financial institution is willing to provide). No Lender shall have any obligation, express or implied, to provide Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments. Only the consent of each Increasing Lender shall be required pursuant to this Section 2.19 in connection with the provision or implementation of any Incremental Term Loan Commitments or incurrence of Incremental Term Loans thereunder or any Incremental Revolving Credit Commitments. No Lender which declines to provide Incremental Term Loan Commitments or Incremental Revolving Credit Commitments may be replaced with respect to its existing Term Loans or Revolving Credit Commitments as a result thereof without such Lender’s consent. Notwithstanding anything to the contrary contained in this Section 2.19(a), to the extent that the proceeds of any Incremental Term Loans are, substantially concurrently with the receipt thereof, to be used by the Borrower or any other Group Member to finance, in whole or in part, a Limited Condition Acquisition, then (x) the requirement set forth in clause (a)(iv) above that all representations and warranties be true and correct in all material respects (other than certain customary “specified representations” as may be agreed by the relevant Lenders providing such Incremental Term Loans and the Borrower) and/or (y) the absence of a Default or Event of Default requirement set forth in clause (a)(iii) above (other than with respect to any Event of Default under Sections 9.1(a) and (e)), in each case, may be waived or limited, as agreed between the Borrower and the Lenders providing such Incremental Term Loans without the consent of the existing Lenders
(b) The Each Increasing Lender shall as soon as reasonably practicable specify in writing the amount of the proposed Incremental Tranche A Term Loan Commitment of each Commitments or Incremental Tranche A Term Revolving Credit Commitments, as applicable, that it is willing to provide (provided that any Lender not so responding within 5 Business Days (or such shorter period as may be specified by the Applicable Administrative Agent) shall automatically terminate upon the earlier of (i) the making be deemed to have declined such a request). The Borrower may accept some or all of the Incremental Tranche A Term Loans on offered amounts or designate new lenders that are reasonably acceptable to the Effective Date and Applicable Administrative Agent as additional Lenders hereunder in accordance with this Section 2.19 (iibut only to the extent that such new lender would otherwise be eligible to be a Lender hereunder pursuant to Section 11.2(b), including by reason of obtaining all necessary consents thereunder in accordance with the terms thereof) 5:00 p.m.(each such new lender being a “New Lender”), which New York City time, on March 4, 2019.
(c) On the Effective Date (i) the U.S. Borrower shall use the proceeds Lenders may provide all or a portion of the Incremental Tranche A Term Loans solely to prepay the aggregate principal amount of the Tranche A Loans outstanding under the applicable Incremental Term Loan Commitments and/or Incremental Revolving Credit Agreement immediately prior Commitments, as applicable.
(c) Subject to the Effective Date foregoing, any increase requested by the Borrower shall be effective upon (A) delivery to the Applicable Administrative Agent of each of the following documents: (i) a notice of such increase to the Increasing Lenders and New Lenders, in form and substance reasonably acceptable to the Applicable Administrative Agent, signed by a Responsible Officer of the Borrower; (ii) to the extent requested by any New Lender or Increasing Lender, executed Notes in respect of Incremental Term Loan Commitments or Incremental Revolving Credit Commitments issued by the Borrower in accordance with Section 2.14(e); (iii) an amendment (an “Existing Tranche A LoansIncremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each other applicable Loan Party, each Increasing Lender (if any), each New Lender (if any), the Applicable Administrative Agent and the Collateral Agent, to the extent necessary or appropriate in the reasonable opinion of the Applicable Administrative Agent to give effect to any Incremental Term Loans and/or Incremental Revolving Credit Commitments, in each case, to be made or incurred pursuant to this Section 2.19 in each case on terms consistent with this Section 2.19; and (iv) any other certificates or documents that the Applicable Administrative Agent shall reasonably request, in form and substance reasonably satisfactory to the Applicable Administrative Agent, and (B) satisfaction on the effective date of any Incremental Amendment and the making of each Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments of (x) subject to the provisions of the last paragraph of Section 2.19(a), each of the applicable conditions specified in Section 3.2, and (y) such other conditions (if any) as the parties thereto shall mutually agree as set forth in the respective Incremental Amendment. Notwithstanding anything to the contrary in Section 11.1, the Applicable Administrative Agent and the Collateral Agent are expressly permitted, without the consent of the other Lenders, to enter into an Incremental Amendment.
(d) On each effective date with respect to any Incremental Revolving Credit Commitments pursuant to this Section 2.19, (i) the Revolving Credit Commitments shall be increased by an amount equal to the respective Incremental Revolving Credit Commitments (and the Revolving Credit Commitment of each Revolving Credit Commitment Increasing Lender shall constitute a part of, and be added to, the Revolving Credit Commitment of such Lender and the aggregate Revolving Credit Commitments), (ii) the Borrowers shall use the proceeds of new Revolving Loans to be made by the Incremental Revolving Credit Lenders each Lender in accordance with their Incremental Revolving Credit Commitments, together with cash on hand, to (A) prepay all respect of the Revolving Loans outstanding under the Credit Agreement Facility immediately prior to such increase will automatically and without further act be deemed to have assigned to each Increasing Lender and/or New Lender, as applicable, providing a portion of the Effective Date (increase to the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest on the Existing Tranche A Loans and the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all Revolving Credit Commitments in effect under the Revolving Credit Agreement immediately prior to the Effective Date shall be terminated Facility (each, a “Revolving Credit Commitment Increase Lender”), and any Letters of Credit outstanding under each such Revolving Credit Commitments shall, as of the Effective Date, Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding under the Incremental Revolving Credit Commitments.L/C Ex
Appears in 1 contract
Sources: Credit Agreement (Alere Inc.)
Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On the terms and subject Any Borrower may, by written notice to the conditions set forth herein and in the Credit Agreement and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, (i) each Incremental Tranche A Term Lender agrees, severally and not jointly, to makeAdministrative Agent, on one or more occasions during the Effective Date, an term of this Agreement request Incremental Tranche A Term Loan to the U.S. Borrower Commitments or Incremental Revolving Credit Commitments, as applicable, in an aggregate principal amount not to exceed its the Incremental Tranche A Facility Amount in effect at such time from one or more Incremental Term Loan Commitment and (ii) each Lenders and/or Incremental Revolving Credit Lender agreesLenders, severally and not jointly, all of which must be Eligible Assignees. Such notice shall set forth (i) the identity of the Borrower or Borrowers to provide, on which the Effective Date, Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments to the applicable Borrower or Borrowers in an aggregate principal amount not to exceed its Incremental Revolving Credit Commitments hereunder. Amounts paid or prepaid in respect of the Incremental Tranche A Term Loans may not shall be reborrowed.
(b) The Incremental Tranche A Term Loan Commitment of each Incremental Tranche A Term Lender shall automatically terminate upon the earlier of (i) the making of the Incremental Tranche A Term Loans on the Effective Date and (ii) 5:00 p.m., New York City time, on March 4, 2019.
(c) On the Effective Date (i) the U.S. Borrower shall use the proceeds of the Incremental Tranche A Term Loans solely to prepay the aggregate principal amount of the Tranche A Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Tranche A Loans”)extended, (ii) the Borrowers shall use amount of the proceeds of new Revolving Loans to be made by the Incremental Term Loan Commitments and/or Incremental Revolving Credit Lenders Commitments being requested (which shall be in accordance with their a minimum increment equal to the Borrowing Multiple and a minimum amount of the Borrowing Minimum or equal to the remaining Incremental Amount), (iii) if the Incremental Term Loan Commitments and/or Incremental Revolving Credit CommitmentsCommitments are to be provided in a Designated Foreign Currency, together with cash the applicable currency, (iv) the date on hand, to (A) prepay all of the Revolving Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest on the Existing Tranche A Loans and the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments in effect under the Credit Agreement immediately prior are requested to the Effective Date become effective (which shall be terminated and any Letters of Credit outstanding under such Revolving Credit Commitments shall, as of the Effective Date, be deemed outstanding under the Incremental Revolving Credit Commitments.not IF " DOCVARIABLE "SWDocIDLocation" 1" = "1" " DOCPROPERTY "SWDocID" [[6026340]]" "" [[6026340]]
Appears in 1 contract
Sources: Fourth Amended and Restated Agreement (Pactiv Evergreen Inc.)
Incremental Term Loans and Incremental Revolving Credit Commitments. (%3) Any Borrower may, by written notice to the Administrative Agent, on one or more occasions during the term of this Agreement request Incremental Term Loan Commitments or Incremental Revolving Credit Commitments, as applicable, in an aggregate amount not to exceed the Incremental Facility Amount in effect at such time from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the identity of the Borrower or Borrowers to which the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments shall be extended, (ii) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in a minimum increment equal to the Borrowing Multiple and a minimum amount of the Borrowing Minimum or equal to the remaining Incremental Amount), (iii) if the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are to be provided in a Designated Foreign Currency, the applicable currency, (iv) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit 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 unless otherwise agreed to by the Administrative Agent), (v) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional U.S. Term Loans of any Class, commitments to make additional European Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”), and (vi) in the case of Incremental Revolving Credit Commitments, whether such Incremental Revolving Credit Commitments are Revolving Credit Commitments or commitments to make Revolving Loans on terms, to Borrowers or in currencies different from the Revolving Loans (“Other Revolving Loans”, and such commitments, “Other Revolving Credit Commitments”). Except with respect to the Specified Incremental Revolving Amount, the Borrowers may elect to request Commitments and incur Indebtedness under this Section 2.23 in reliance on the Incremental Ratio Amount prior to the Incremental Dollar Amount and the Borrower may incur Indebtedness pursuant to clauses (i), (l), (w) or (x) of Section 6.01 and in reliance on the Incremental Dollar Amount, and in the event that such Indebtedness is concurrently incurred pursuant to both the (i) Incremental Ratio Amount or clauses (i), (l), (w) or (x) of Section 6.01 and (ii) the Incremental Dollar Amount, the amount of such Indebtedness incurred pursuant to the Incremental Dollar Amount will be disregarded for purposes of calculating the Total Secured Leverage Ratio or the Fixed Charge Coverage Ratio in connection with the incurrence of such Indebtedness pursuant to the Incremental Ratio Amount or pursuant to clauses (i), (l), (w) or (x) of Section 6.01.
(a) On The applicable Borrower or Borrowers may seek Incremental Term Loan Commitments and/or Incremental Revolving Credit 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 and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower or Borrowers and each Incremental Term Lender and/or Incremental Revolving Credit Lender, as applicable, 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 and/or the Incremental Revolving Credit Commitment of such Person. The terms and subject provisions of (x) the Incremental Term Loans shall be identical to those of the Term Loans of the applicable Class and (y) Incremental Revolving Credit Commitments shall be identical to those of the Revolving Credit Commitments of the applicable Class, in each case except as otherwise set forth herein or in the Incremental Assumption Agreement. Without the prior written consent of the Required Lenders, (i) the final maturity date of any Other Revolving Loans shall be no earlier than the Revolving Credit Maturity Date with respect to any Class of Revolving Loans, (ii) [reserved], (iii) in the case of Other Term Loans incurred on or prior to the date that is 18 months after the 2016 Restatement Date, if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) 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 Holdings 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 (x) the average life to maturity of such Other Term Loans and (y) four) exceeds by more than 50 basis points the sum of (A) the margin then in effect for Eurocurrency Term Loans of any Class (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Margin then in effect for such Eurocurrency Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such Eurocurrency Term Loans of such Class on the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (B) the amount of OID initially paid in respect of the Term Loans of such Class divided by the lesser of (x) the average life to maturity of the Term Loans of such Class as in effect at the time such Term Loans were made as determined by the Administrative Agent in its sole discretion and (y) four (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Eurocurrency Term Loans on the date such Other Term Loans are made, at the request of the Company and in the discretion of the Administrative Agent, the “LIBOR floor”) then in effect for each such affected Class of Term Loans shall automatically be increased by the Yield Differential (or relevant portion thereof), effective upon the making of the Other Term Loans, and (iv) the Applicable Margin with respect to any Incremental Revolving Loans shall be equal to the Applicable Margin for the existing Revolving Loans; provided that the Applicable Margin of the existing Revolving Loans may be increased to equal the Applicable Margin for such Incremental Revolving Loans to satisfy the requirements of this clause (iv). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Notwithstanding anything to the contrary herein, 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 and/or Incremental Revolving Credit Commitment and the Incremental Term Loans and/or Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(b) Notwithstanding the foregoing, without the consent of the Required Lenders, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless (i) on the date of such effectiveness, the conditions set forth herein in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the applicable Borrower or Borrowers, (ii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall have received (with sufficient copies for each of the Incremental Term Lenders and/or Incremental Revolving Credit Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement and in reliance upon (or, if the representations and warranties set forth herein and in the other Loan Documents, (i) each proceeds of any Incremental Tranche A Term Lender agrees, severally and not jointly, to make, on the Effective Date, an Incremental Tranche A Term Loan to the U.S. Borrower in an aggregate principal amount not to exceed its Incremental Tranche A Term Loan Commitment and (ii) each or Incremental Revolving Credit Lender agreesCommitment will be used to consummate a Permitted Acquisition, severally and not jointlySection 4 of Amendment No. 6), to provide, on (iii) the Effective Date, Incremental Revolving Credit Commitments to Administrative Agent shall have received from the applicable Borrower or Borrowers in an aggregate principal amount not to exceed its Incremental Revolving Credit Commitments hereunder. Amounts paid or prepaid all fees and other amounts due and payable in respect of the Incremental Tranche A Term Loan Commitments and/or Incremental Revolving Credit Commitments, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by such Borrower or Borrowers hereunder or under any other Loan Document and (iv) except for any Incremental Revolving Commitments requested in reliance on the Specified Incremental Revolving Amount, Holdings shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment and the Loans may not to be reborrowed.
made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that to the extent the proceeds of Loans made pursuant to any Incremental Term Loan Commitment or Incremental Revolving Credit Commitment will be used to consummate a Limited Condition Acquisition, notwithstanding anything to the contrary in Section 4.01, the conditions set forth in paragraphs (b) The and (c) of Section 4.01 shall be required to be satisfied, at the option of Holdings, on the date on which definitive agreements with respect to such Limited Condition Acquisition are entered into or on the effective date of such Incremental Tranche A Term Loan Commitment of each Commitments or Incremental Tranche A Term Lender shall automatically terminate upon the earlier of (i) the making of the Incremental Tranche A Term Loans on the Effective Date and (ii) 5:00 p.m., New York City time, on March 4, 2019Revolving Credit Commitments.
(c) On Each of the Effective Date parties hereto hereby agrees that the Administrative Agent may, in consultation with the applicable Borrower or Borrowers, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. With respect to Incremental Term Loans, this may be accomplished by converting each outstanding Eurocurrency Term Borrowing into an ABR Term Borrowing on the U.S. Borrower shall use date of each Incremental Term Loan. With respect to Incremental Revolving Commitments, this may be accomplished by (i) requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) causing Lenders to assign portions of their outstanding Revolving Loans to Incremental Revolving Credit Lenders or (iii) any combination of the foregoing. Any conversion of Eurocurrency Loans to Daily Rate Loans contemplated in the preceding two sentences shall be subject to Section 2.16. In addition, to the extent any Incremental Tranche A Term Loans solely are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) or (ii), as applicable, required to prepay 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 of the Tranche A Loans outstanding under the Credit Agreement immediately prior applicable Class on a pro rata basis to the Effective Date (extent necessary to avoid any reduction in the “Existing Tranche A Loans”), (ii) the Borrowers shall use the proceeds of new Revolving Loans amortization payments to be made by the Incremental Revolving Credit which such Lenders in accordance with their Incremental Revolving Credit Commitments, together with cash on hand, to (A) prepay all of the Revolving Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest on the Existing Tranche A Loans and the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all Revolving Credit Commitments in effect under the Credit Agreement immediately prior to the Effective Date shall be terminated and any Letters of Credit outstanding under were entitled before such Revolving Credit Commitments shall, as of the Effective Date, be deemed outstanding under the Incremental Revolving Credit Commitmentsrecalculation.
Appears in 1 contract
Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On the terms and subject The Borrower may, by written notice to the conditions set forth herein and Administrative Agent from time to time, request Incremental Term Loan Commitments or an increase in the aggregate amount of the Revolving Credit Agreement and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, Commitments (i) each Incremental Tranche A Term Lender agrees, severally and not jointly, to make, on the Effective Datesuch increase, an “Incremental Tranche A Term Loan to the U.S. Borrower Revolving Credit Commitment”), as applicable, in an aggregate principal amount not to exceed its for all such Incremental Tranche A Term Loan Commitment Commitments and (ii) each Incremental Revolving Credit Lender agrees, severally and not jointly, to provide, on the Effective Date, Incremental Revolving Credit Commitments to the applicable Borrower or Borrowers in an aggregate principal amount not to exceed its the Incremental Facility Amount, from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments hereunder. Amounts paid being requested (which shall be in minimum increments of $1,000,000 and a minimum amount of $10,000,000 or prepaid in respect of such lesser amount equal to the amount remaining under the Incremental Tranche A Term Loans may not be reborrowed.
(b) The Incremental Tranche A Term Loan Commitment of each Incremental Tranche A Term Lender shall automatically terminate upon the earlier of (i) the making of the Incremental Tranche A Term Loans on the Effective Date and (ii) 5:00 p.m., New York City time, on March 4, 2019.
(c) On the Effective Date (i) the U.S. Borrower shall use the proceeds of the Incremental Tranche A Term Loans solely to prepay the aggregate principal amount of the Tranche A Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Tranche A Loans”Facility Amount), (ii) the Borrowers date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are requested to become effective (which shall use not be earlier than 5 Business Days (or such later date as may be acceptable to the proceeds Administrative Agent) from the date of new Revolving such notice) and (iii) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional Term Loans (“Additional Term Loans”) or commitments to make term loans with terms different from the Term Loans (“Other Term Loans” and, together with Additional Term Loans, “Incremental Term Loans”).
(b) Each Person that provides (i) any Incremental Term Loan Commitments (other than a Person that is a Lender, an Affiliate of a Lender or a Related Fund of a Lender) shall be approved by the Administrative Agent (such approval not to be made unreasonably withheld, conditioned or delayed) prior to such Incremental Term Loan Commitments becoming effective and (ii) any Incremental Revolving Credit Commitment shall be approved by the Administrative Agent (such approval not to be unreasonably withheld, conditioned or delayed) and the Issuing Bank and the Swing Line Lender (in each case, such approval not to be unreasonably withheld, conditioned or delayed), in all cases prior to such Incremental Revolving Credit Commitments becoming effective; provided that in no event will (i) any Lender be required to provide any Incremental Term Loan Commitments or any Incremental Revolving Credit Commitments without its consent (which it may grant or withhold in its sole discretion) and (ii) the aggregate principal amount of Swing Loans or aggregate amount of Letters of Credit that are available to be borrowed or issued hereunder be increased or the latest maturity or expiry date of any Swing Loan or Letter of Credit be extended without the consent of the Swing Line Lender or Issuing Bank, as applicable. The Borrower and each Incremental Term Lender and/or Incremental Revolving Credit Lender, as applicable, 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 and/or Incremental Revolving Credit Commitment of such Person and the Borrower shall deliver such customary opinions and certificates and other documentation as shall be reasonably requested by the Administrative Agent in connection with the establishment of such Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment. The terms and provisions of the Incremental Term Loans shall be identical to those of the Term Loans except with respect to Other Term Loans, to the extent reasonably satisfactory to the Administrative Agent, as otherwise set forth herein or in the Incremental Assumption Agreement. The terms and provisions of the Incremental Revolving Credit Lenders in accordance with their Commitments shall be identical to those of the Revolving Credit Commitments. The Incremental Term Loans and Incremental Revolving Credit Commitments shall rank pari passu in right of payment and security with the Term Loans and Revolving Credit Commitments. Without the prior written consent of the Required Lenders, together with cash on hand, to (i) (A) prepay all the final maturity date of any Other Term Loans shall be no earlier than the Revolving Loans outstanding under the Credit Agreement immediately prior to the Effective Term Loan Maturity Date (the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest the final maturity date of any Incremental Revolving Credit Commitment shall be the Revolving Credit Maturity Date, and (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 Term Loans. If the All-In Yield on any Incremental Term Loans exceeds the All-In Yield on the Existing Tranche A Term Loans then in effect by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), then the Applicable Margin then in effect for Term Loans shall automatically be increased by the Yield Differential, effective upon the making of the Incremental Term Loans; provided that, if any Incremental Term Loans include an Adjusted LIBO Rate floor or Alternate Base Rate floor that is greater than the Adjusted LIBO Rate floor or Alternate Base Rate floor applicable to the Term Loans, such differential between interest rate floors shall be included in the calculation of All-In Yield for purposes of this sentence but only to the extent an increase in the Adjusted LIBO Rate floor or Alternate Base Rate floor applicable to the Term Loans would cause an increase in the interest rate then in effect thereunder, and in such case the Adjusted LIBO Rate floor and Alternate Base Rate floor (solely with respect to such differential and not with respect to any other adjustment to the Applicable Margins of the Term Loans required by this sentence, which shall still otherwise be made) applicable to the Term Loans shall be increased to the extent of such differential between interest rate floors. 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 Commitments and/or Incremental Revolving Credit Commitments and the Existing Incremental Term Loans and/or Incremental Revolving Credit 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 Credit Commitment shall become effective under this Section 2.24 unless (i) on the date of such effectiveness, (A) the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied or (B) in the event such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments are used to finance a Permitted Acquisition (other than a Pending Acquisition), no Event of Default under paragraphs (b), (c), (g) or (h) of Section 7.01 shall have occurred and be continuing or would result therefrom and the only representations and warranties required to be made upon the initial borrowing date thereof shall be the Specified Representations, and with respect to the assets or person so prepaidacquired, together the Future Target Representations and the Administrative Agent shall have received, in each case, a certificate to that effect dated such date and executed by a Financial Officer of the Borrower, (ii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall have received legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02, (iii) on a Pro Forma Basis for the most recent Test Period, after giving effect to such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments (and assuming any Incremental Revolving Credit Commitments are fully drawn and no proceeds of any Incremental Term Loans or any Loans made under Incremental Revolving Credit Commitments are netted against Indebtedness) (A) the Secured Leverage Ratio of the Companies on a consolidated basis would be no greater than 2.50:1.00 and (B) the Companies will be in compliance with the covenants set forth in Section 6.07, (iv) all fees and expenses relating thereto owing in respect of such Incremental Term Loan Commitment to the Administrative Agent and the Lenders shall have been paid in full and (iiiv) all Revolving Credit Commitments in effect under the Credit Agreement immediately prior to the Effective Date shall be terminated extent not consistent with this Agreement, the other terms and any Letters of Credit outstanding under such Revolving Credit Commitments shall, as documentation in respect of the Effective Date, Other Term Loans shall otherwise be deemed outstanding under reasonably satisfactory to the Administrative Agent.
(d) Incremental Revolving Credit CommitmentsTerm Loans may be made on a delayed draw basis pursuant to procedures and documentation agreed by the Borrower and the Administrative Agent.
Appears in 1 contract
Sources: Credit Agreement (RCS Capital Corp)
Incremental Term Loans and Incremental Revolving Credit Commitments. (a) On the terms and subject Any Borrower may, by written notice to the conditions set forth herein and in the Credit Agreement and in reliance upon the representations and warranties set forth herein and in the other Loan Documents, (i) each Incremental Tranche A Term Lender agrees, severally and not jointly, to makeAdministrative Agent, on one or more occasions during the Effective Date, an term of this Agreement request Incremental Tranche A Term Loan to the U.S. Borrower Commitments or Incremental Revolving Credit Commitments, as applicable, in an aggregate principal amount not to exceed its the Incremental Tranche A Facility Amount in effect at such time from one or more Incremental Term Lenders and/or Incremental Revolving Credit Lenders, all of which must be Eligible Assignees. Such notice shall set forth (i) the identity of the Borrower or Borrowers to which the Incremental Term Loan Commitment Commitments and/or Incremental Revolving Credit Commitments shall be extended, (ii) the amount of the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments being requested (which shall be in a minimum increment equal to the Borrowing Multiple and a minimum amount of the Borrowing Minimum or equal to the remaining Incremental Amount), (iii) if the Incremental Term Loan Commitments and/or Incremental Revolving Credit Commitments are to be provided in a Designated Foreign Currency, the applicable currency, (iv) the date on which such Incremental Term Loan Commitments and/or Incremental Revolving Credit 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 unless otherwise agreed to by the Administrative Agent), (v) in the case of Incremental Term Loan Commitments, whether such Incremental Term Loan Commitments are commitments to make additional U.S. Term Loans of any Class, commitments to make additional European Term Loans or commitments to make term loans with terms different from the Term Loans (“Other Term Loans”), and (vi) in the case of Incremental Revolving Credit Commitments, whether such Incremental Revolving Credit Commitments are Revolving Credit Commitments or commitments to make Revolving Loans on terms, to Borrowers or in currencies different from the Revolving Loans (“Other Revolving Loans”, and such commitments, “Other Revolving Credit Commitments”). Except with respect to the Specified Incremental Revolving Amount, the Borrowers may elect to request Commitments and incur Indebtedness under this Section 2.23 in reliance on the Incremental Ratio Amount prior to the Incremental Dollar Amount and the Borrower may incur Indebtedness pursuant to clauses (i), (l), (w) or (x) of Section 6.01 and in reliance on the Incremental Dollar Amount, and in the event that such Indebtedness is concurrently incurred pursuant to both the (i) Incremental Ratio Amount or clauses (i), (l), (w) or (x) of Section 6.01 and (ii) each the Incremental Revolving Credit Lender agreesDollar Amount, severally and not jointly, to provide, on the Effective Date, Incremental Revolving Credit Commitments amount of such Indebtedness incurred pursuant to the applicable Borrower Incremental Dollar Amount will be disregarded for purposes of calculating the Total Secured Leverage Ratio or Borrowers the Fixed Charge Coverage Ratio in an aggregate principal amount not connection with the incurrence of such Indebtedness pursuant to exceed its Incremental Revolving Credit Commitments hereunder. Amounts paid or prepaid in respect of the Incremental Tranche A Term Loans may not be reborrowedRatio Amount or pursuant to clauses (i), (l), (w) or (x) of Section 6.01.
(b) The applicable Borrower or Borrowers may seek Incremental Tranche A Term Loan Commitments and/or Incremental Revolving Credit 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 and/or Incremental Revolving Credit Lenders, as applicable, in connection therewith. The applicable Borrower or [[5517420]] #93623000v7 Borrowers and each Incremental Term Lender and/or Incremental Revolving Credit Lender, as applicable, 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 and/or the Incremental Revolving Credit Commitment of such Person. The terms and provisions of (x) the Incremental Term Loans shall be identical to those of the Term Loans of the applicable Class and (y) Incremental Revolving Credit Commitments shall be identical to those of the Revolving Credit Commitments of the applicable Class, in each case except as otherwise set forth herein or in the Incremental Tranche A Term Lender shall automatically terminate upon Assumption Agreement. Without the earlier prior written consent of the Required Lenders, (i) the making final maturity date of any Other Revolving Loans shall be no earlier than the Incremental Tranche A Revolving Credit Maturity Date with respect to any Class of Revolving Loans, (ii) [reserved], (iii) in the case of Other Term Loans incurred on or prior to the date that is 18 months after the 2016 Restatement Date, if the initial yield on such Other Term Loans (as determined by the Administrative Agent to be equal to the sum of (x) the margin above the Adjusted LIBO Rate on such Other Term Loans (which shall be increased by the amount that any “LIBOR floor” applicable to such Other Term Loans on the Effective Date date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) and (iiy) 5:00 p.m.if such Other Term Loans are initially made at a discount or the Lenders making the same receive a fee directly or indirectly from Holdings or any Subsidiary for doing so (the amount of such discount or fee, New York City timeexpressed as a percentage of the Other Term Loans, being referred to herein as “OID”), the amount of such OID divided by the lesser of (x) the average life to maturity of such Other Term Loans and (y) four) exceeds by more than 50 basis points the sum of (A) the margin then in effect for Eurocurrency Term Loans of any Class (which, with respect to the Term Loans of any such Class, shall be the sum of the Applicable Margin then in effect for such Eurocurrency Term Loans of such Class increased by the amount that any “LIBOR floor” applicable to such Eurocurrency Term Loans of such Class on March 4the date such Other Term Loans are made would exceed the Adjusted LIBO Rate (without giving effect to clause (a) in the definition thereof) that would be in effect for a three-month Interest Period commencing on such date) plus (B) the amount of OID initially paid in respect of the Term Loans of such Class divided by the lesser of (x) the average life to maturity of the Term Loans of such Class as in effect at the time such Term Loans were made as determined by the Administrative Agent in its sole discretion and (y) four (the amount of such excess above 50 basis points being referred to herein as the “Yield Differential”), 2019then the Applicable Margin (or, in the case of that portion, if any, of the Yield Differential resulting from the “LIBOR floor” applicable to such Other Term Loans being greater than that applicable to such Class of Eurocurrency Term Loans on the date such Other Term Loans are made, at the request of the Company and in the discretion of the Administrative Agent, the “LIBOR floor”) then in effect for each such affected Class of Term Loans shall automatically be increased by the Yield Differential (or relevant portion thereof), effective upon the making of the Other Term Loans, and (iv) the Applicable Margin with respect to any Incremental Revolving Loans shall be equal to the Applicable Margin for the existing Revolving Loans; [[5517420]] #93623000v7 provided that the Applicable Margin of the existing Revolving Loans may be increased to equal the Applicable Margin for such Incremental Revolving Loans to satisfy the requirements of this clause (iv). The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Incremental Assumption Agreement. Notwithstanding anything to the contrary herein, 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 and/or Incremental Revolving Credit Commitment and the Incremental Term Loans and/or Incremental Revolving Loans evidenced thereby, and the Administrative Agent and the Borrowers may revise this Agreement to evidence such amendments.
(c) On Notwithstanding the Effective Date foregoing, without the consent of the Required Lenders, no Incremental Term Loan Commitment or Incremental Revolving Credit Commitment shall become effective under this Section 2.23 unless (i) on the U.S. date of such effectiveness, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be satisfied and the Administrative Agent shall have received a certificate to that effect dated such date and executed by a Financial Officer of the applicable Borrower or Borrowers, (ii) except as otherwise specified in the applicable Incremental Assumption Agreement, the Administrative Agent shall use have received (with sufficient copies for each of the Incremental Term Lenders and/or Incremental Revolving Credit Lenders) legal opinions, board resolutions and other closing certificates reasonably requested by the Administrative Agent and consistent with those delivered on the Closing Date under Section 4.02 of the Original Credit Agreement (or, if the proceeds of any Incremental Term Loan Commitment or Incremental Revolving Credit Commitment will be used to consummate a Permitted Acquisition, Section 4 of Amendment No. 6), (iii) the Administrative Agent shall have received from the applicable Borrower or Borrowers all fees and other amounts due and payable in respect of the Incremental Tranche A Term Loan Commitments and/or Incremental Revolving Credit Commitments, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by such Borrower or Borrowers hereunder or under any other Loan Document and (iv) except for any Incremental Revolving Commitments requested in reliance on the Specified Incremental Revolving Amount, Holdings shall be in Pro Forma Compliance after giving effect to such Incremental Term Loan Commitment and/or Incremental Revolving Credit Commitment and the Loans to be made thereunder and the application of the proceeds therefrom as if made and applied on such date; provided that to the extent the proceeds of Loans made pursuant to any Incremental Term Loan Commitment or Incremental Revolving Credit Commitment will be used to consummate a Limited Condition Acquisition, notwithstanding anything to the contrary in Section 4.01, the conditions set forth in paragraphs (b) and (c) of Section 4.01 shall be required to be satisfied, at the option of Holdings, on the date on which definitive agreements with respect to such Limited Condition Acquisition are entered into or on the effective date of such Incremental Term Loan Commitments or Incremental Revolving Credit Commitments. [[5517420]] #93623000v7
(d) Each of the parties hereto hereby agrees that the Administrative Agent may, in consultation with the applicable Borrower or Borrowers, take any and all action as may be reasonably necessary to ensure that (i) all Incremental Term Loans solely (other than Other Term Loans), when originally made, are included in each Borrowing of outstanding Term Loans on a pro rata basis and (ii) all Revolving Loans in respect of Incremental Revolving Credit Commitments (other than Other Revolving Loans), when originally made, are included in each Borrowing of outstanding Revolving Loans on a pro rata basis. With respect to prepay Incremental Term Loans, this may be accomplished by converting each outstanding Eurocurrency Term Borrowing into an ABR Term Borrowing on the date of each Incremental Term Loan. With respect to Incremental Revolving Commitments, this may be accomplished by (i) requiring the outstanding Revolving Loans to be prepaid with the proceeds of a new Revolving Credit Borrowing, (ii) causing Lenders to assign portions of their outstanding Revolving Loans to Incremental Revolving Credit Lenders or (iii) any combination of the foregoing. Any conversion of Eurocurrency Loans to Daily Rate Loans contemplated in the preceding two sentences shall be subject to Section 2.16. In addition, to the extent any Incremental Term Loans are not Other Term Loans, the scheduled amortization payments under Section 2.11(a)(i) or (ii), 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 of the Tranche A Loans outstanding under the Credit Agreement immediately prior applicable Class on a pro rata basis to the Effective Date (extent necessary to avoid any reduction in the “Existing Tranche A Loans”), (ii) the Borrowers shall use the proceeds of new Revolving Loans amortization payments to be made by the Incremental Revolving Credit which such Lenders in accordance with their Incremental Revolving Credit Commitments, together with cash on hand, to (A) prepay all of the Revolving Loans outstanding under the Credit Agreement immediately prior to the Effective Date (the “Existing Revolving Loans”) and (B) pay all accrued but unpaid interest on the Existing Tranche A Loans and the Existing Revolving Loans so prepaid, together with any fees and expenses relating thereto and (iii) all Revolving Credit Commitments in effect under the Credit Agreement immediately prior to the Effective Date shall be terminated and any Letters of Credit outstanding under were entitled before such Revolving Credit Commitments shall, as of the Effective Date, be deemed outstanding under the Incremental Revolving Credit Commitmentsrecalculation.
Appears in 1 contract
Sources: Fourth Amended and Restated Credit Agreement (Pactiv Evergreen Inc.)