Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions: (i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans; (ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000; (iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and (iv) [reserved]; (v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(a) (i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(i) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, ) and (ii) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date and any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that in connection with a Limited Condition Transaction, (or x) the conditions in all respects, as clause (i) and in clause (ii) above shall be tested (if applicable) solely on the applicable LCT Test Date as selected by the Borrower pursuant to Section 1.07(11) and (y) the conditions in clause (i) and in clause (ii) shall only be required to be satisfied to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (or such lesser amount to which the Administrative Agent (or in the case of the Priority Revolving Facility, Priority Revolving Agent) may reasonably agree) (provided that such amount may be less than $5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount available under clauses (i) through (iii) below, the “Available Incremental Amount”):
(i) the sum of (I) the greater of (the “Free and Clear Incremental Amount”) (A) an unlimited amount $46.9 million and (B) 100.0% of Consolidated EBITDA of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), plus (II) [reserved], less (III) [reserved], plus (IV) the aggregate principal amount, without duplication, of (A) voluntary prepayments, redemptions or repurchases of Closing Date Term Loans (including 2021, 2022 Incremental Term Loans), C2 Incremental Term Loans, Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Closing Date Term Loans (including 2021, such amount on and as of the date of the incurrence of such 2022 Incremental Term Loans), C2 Incremental Term Loans, Incremental Term Loans or such Permitted Incremental CommitmentsEquivalent Debt by Holdings, would the Borrower or any of its Subsidiaries at or below par) in each case secured on a pari passu basis with the Obligations (without regard to the control of remedies), (B) voluntary permanent commitment reductions in respect of the Closing Date Revolving Facility, Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case secured on a pari passu basis with the Obligations (without regard to the control of remedies), (C) [reserved] and (D) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness (or, in the case of any of the foregoing under this clause (D) that constitutes a revolving credit commitment, voluntary permanent commitment reductions in respect thereof), in each case secured on a pari passu basis with the Obligations (without regard to the control of remedies), previously applied to the (a) prepayment, redemption or repurchase of any Closing Date Term Loans (including 2021, 2022 Incremental Term Loans), C2 Incremental Term Loans, Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) or (b) voluntary permanent commitment reductions in respect of the Closing Date Revolving Facility, Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (IV) shall not cause have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)), plus
(ii) (I) in the Consolidated case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any Facility, an amount equal to the portion of the Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (II) in the case of any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Commitment or Loan, plus
(iii) an unlimited amount, so long as in the case of this clause (iii) only,
(I) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), the First Lien Net Leverage Ratio (determined for the Test Period most recently ended calculated on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without basis after giving effect to any concurrent such incurrence does not exceed 4.80 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that, in the case of an incurrence of any Indebtedness made pursuant to Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred),
(II) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement and for the avoidance of doubt is not incurred pursuant to clause (III) below, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 5.75 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred), or
(III) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured (or, solely for purposes of clause (2) under the definition of “Permitted Incremental Equivalent Debt”, Permitted Incremental Equivalent Debt that is secured by assets of the Borrower or any Restricted Subsidiary that do not constitute Collateral), either (1) any borrowing under the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 6.00 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) or (2) to the extent such Incremental Loans or Incremental Revolving Loan CommitmentsCommitments are incurred in connection with an acquisition or other Investment permitted under this Agreement, the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence is no greater than the Total Net Leverage Ratio immediately prior to giving effect to such incurrence or establishment of Incremental Loans or Incremental Revolving Commitments (provided that, in each case under clauses (1) and (2) any above, in the case of an incurrence of Incremental Term Loans) Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to exceed 3.00 be incurred). The Borrower may elect to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in use clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount definition of Loans available thereunder “Available Incremental Amount” regardless of whether the Borrower has capacity under clauses (i) or (ii) of the definition of “Available Incremental Amount.” Further, the Borrower may elect to use clause (iii) of the definition of “Available Incremental Amount” prior to using clauses (i) or (ii) of the definition of “Available Incremental Amount,” and if both clause (Biii) and clauses (i) or (ii) of the definition of “Available Incremental Amount” are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (iii) of the extent definition of “Available Incremental Amount.” In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the proceeds thereof are used to repay Indebtedness, definition of “Available Incremental Amount” shall be automatically reclassified as incurred under clause (iii) of the definition of “Available Incremental Amount” at such time as the Borrower would meet the applicable leverage-based incurrence test at such time on a pro forma effect shall be given to such repayment of Indebtednessbasis, unless otherwise elected by the Borrower.
Appears in 1 contract
Samples: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement that is not conditioned upon obtaining third- party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects (or in all respects, as applicable) as of the on such respective date or for the respective period, as the case may bedates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (provided, further, that, in the case of Incremental Term Commitments (and for any such acquisition or other Investment with a purchase price in excess of $20.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an this Section 2.14(4)); and
(c) the aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited maximum amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, Indebtedness that can be incurred such amount on and as of that the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined for the Test Period most recently ended calculated on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without basis after giving effect to any concurrent such incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to does not exceed 3.00 2.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise“Available Incremental Amount”); and
(iv) [reserved];
(v) provided that for purposes the avoidance of the calculations in clause (iii) abovedoubt, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof of any Incremental Loans are used being utilized to repay IndebtednessIndebtedness (including any repayment, repurchase or refinancing of Indebtedness for which an irrevocable notice of repayment (or similar notice of repayment) has been delivered), such calculations shall give pro forma effect shall be given to such repayment of Indebtednessrepayments.
Appears in 1 contract
Samples: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, no Default or Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the representations conditions of Sections 4.02(i) and warranties in Article V of this Agreement 4.02(ii) shall be true and correct in satisfied (it being understood that all material respects (or, in the case of any representation and warranty that is qualified as references to “materiality,” “Material Adverse Effectthe date of such Loan” or similar language, language in all respects) on and as of such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that, if the incurrence proceeds of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred are being used to finance a Permitted Acquisition or other Investment permitted under hereunder, the reference in Section 7.02(o), (s4.02(i) or (t) that, in any such case, is not conditioned on to the availability accuracy of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be madeshall, but only to the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise extent agreed by the Incremental Term Lenders providing such Incremental Term Commitments Lender, refer to customary “specified representations” and Incremental Term Loans“specified acquisition representations”;
(iiiii) [reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v));
(iiiv) the aggregate amount of the Incremental Term Loans (when aggregated with the Initial Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date with amounts incurred at or prior to such time pursuant to Section 7.03(q)) shall not exceed the sum greater of (A) $300,000,000 and (B) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long asas the Incremental Loan-to-Value Ratio, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds Basis as of the last day of the most recently ended Test Period, as if any Incremental LoanLoans available under such Incremental Commitments had been outstanding on the last day of such period, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnand, (y) in each case, without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding netting the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan CommitmentsLoans, and (2) any Incremental Term Loans) to does not exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)5.0%; and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (Bvi) to the extent reasonably requested by the proceeds thereof are used to repay IndebtednessLender, pro forma effect the Lender shall be given have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such repayment legal opinion resulting from a change in law, change in fact or change to counsel’s form of Indebtednessopinion reasonably satisfactory to the Lender.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments), and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date and any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that in connection with a Limited Condition Transaction, the conditions in clause (or x) (other than the condition referenced in all respects, as applicablethe proviso thereto in respect of Section 8.01(1) as and Section 8.01(6)) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term C ommitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided provided, further, that in the case of Incremental Term Commitments an acquisition or other Investment with a purchase price in excess of the greater of (A) $650.0 million and (B) 100.0% of Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance most recently ended Test Period (calculated on a Permitted Acquisition or Investment permitted under Section 7.02(opro forma basis), the conditions contained in clause (sy) or (t) thatwith respect to Specified Representations, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver whether or non-requirement of the absence of a Default or Event of Default (other than not requested by such Persons, unless waived in accordance with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans10.01;
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount available under clauses (A) an unlimited amount through (C) below, the “Available Incremental Amount”):
(A) the sum of (1) the greater of (the “Free and Clear Incremental Amount”) (x) $650.0 million and (y) 100.0% of Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), plus (2) any General Debt Basket Reallocated Amount, plus (3) the aggregate principal amount, without duplication, of (x) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or such Permitted Incremental Equivalent Debt by Holdings, such amount on and as the Borrower or any Subsidiaries of Holdings at or below par), in each case, only to the date of the incurrence of extent such Incremental Term Loans or Permitted Incremental Commitments, would not cause Equivalent Debt was incurred in reliance on the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Free and Clear Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnAmount, (y) without giving effect to any concurrent incurrence voluntary permanent commitment reductions in respect of any Indebtedness made pursuant Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case, to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) extent such Incremental Revolving Commitments or Section 7.03(r)(ii)(B) Permitted Incremental Equivalent Debt was incurred in reliance on the Free and Clear Incremental Amount and (z) excluding voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness (or, in the cash proceeds case of any of the foregoing under this clause (1z) any borrowing under any such Incremental Revolving Loan Commitmentsthat constitutes a revolving credit commitment, and voluntary permanent commitment reductions in respect thereof) previously applied to the (2I) prepayment, redemption or repurchase of any Incremental Term LoansLoans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) or (II) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case under sub-clauses (I) and (II), to exceed 3.00 to 1.00 the extent such Indebtedness was originally incurred in reliance on the Free and Clear Incremental Amount (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (3) shall not have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)), plus
(B) (x) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any Facility, an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as portion of the date Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (y) in the case of incurrence any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Commitment or Loan (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred the amounts under this clause (B4)(c)(B), together with the Free and Clear Incremental Amount, the “Non-Ratio Based Incremental Amount”), plus
(C) shall be available at all times and not subject to any ratio testan unlimited amount, whether incurred simultaneously with amounts under so long as in the case of this clause (AC) or otherwiseonly (the “Ratio Based Incremental Amount” and together with the Non-Ratio Based Incremental Amount, the “Available Incremental Amount”); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.,
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including waiver or non-requirement of (1) the representations and warranties hereunder shall be made, but only the (other than customary “specified” representations and warranties shall be required to be accuratewarranties) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(Aiii)(B) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansCommitments;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Amendment No. 4 Effective Date shall not exceed the sum of (A) an unlimited amount equal to $60,000,000 (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(A) or (ii)(A)); provided that no more than $25,000,000 may be borrowed in reliance on this clause (A) (and Section 7.03(r)(i)(A) or (ii)(A)) until the first date following the delivery pursuant to Section 6.01(b) of financial statements for the fiscal quarter ending June 30, 2020 on which the Consolidated First Lien Net Leverage Ratio is less than or equal to 4.00 to 1.00 plus (B) up to an additional amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount as on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) drawn and (z) excluding the cash proceeds of (1x) any borrowing under any such Incremental Revolving Loan Commitments, and (2y) any Incremental Term Loans) to exceed 3.00 to 1.00 Loans and (Bz) an additional amount equal any other Indebtedness that is incurred substantially concurrently therewith) is no more than 3.304.00 to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)1.00; and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and thereunder, (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of IndebtednessIndebtedness and (C) Indebtedness incurred under clause (iii)(A) above shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (iii)(B) or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) with respect to any Incremental Commitments, (A) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments incurred to finance a permitted acquisition or other permitted Investments (including in any event a Limited Condition Acquisition) no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.1(a), (b), (h) and for (i) shall exist on (i) the avoidance of doubtdate that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, not or, (ii) in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans Commitments incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o)Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (si) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”ii), (x) such condition regarding an absence of such an Event of Default and the requirement that the representations and warranties have to be made and accurate in all material respects shall be subject to customary “SunGardSungard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary or “specifiedcertain funds” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loanslimitations;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below);
(iii) the aggregate amount of the Incremental Term Loans and Loans, the Incremental Revolving Loan Commitments following the Delayed Draw and Other Term A Commitment Expiration Date Loans shall not exceed the sum of (A) an unlimited amount equal to $100,000,000 (minus the aggregate amount of Indebtedness incurred pursuant to Section 2.23(d)(iii)(A) of the Second Lien Credit Agreement), plus (B) up to an additional amount of Incremental Term Loans and/or Loans, Incremental Revolving Loan Commitments, Other Commitments and/or Other Term Loans, (i) so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 4.40:1.00, including (ii) to the pro forma effect extent such Indebtedness consists of any Specified Transaction Other Term Loans that are secured on a junior lien basis and not subordinated in right of payment to be financed the Term Loans and the Revolving Loans, so long as the Consolidated Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 or (iii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in whole right of payment to the Term Loans and the Revolving Loans, so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to or in part) with the proceeds less than 6.00:1.00 as of the last day of the most recently ended period of four fiscal quarters of the Borrower for which financial statements are available, determined on the applicable Incremental LoanFacility Closing Date, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without after giving effect to any concurrent such incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B)or issuance on a Pro Forma Basis, Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitmentsand, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testin each case, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental CommitmentsRevolving Commitment or Incremental Term Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder thereunder, and (B) excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement and under the Second Lien Credit Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and the Second Lien Term Facility Indebtedness and (y) any Incremental Term Loans, Other Term Loans, Second Lien Incremental Term Loans, Second Lien Other Term Loans, Incremental Equivalent Debt or Second Lien Incremental Equivalent Debt and permanent voluntary commitment reductions of the Revolving Commitments, including any Incremental Revolving Commitments (less all such reductions applied to increase the corresponding incremental facility basket under the Second Lien Term Facility, Second Lien Incremental Equivalent Debt or Incremental Equivalent Debt), other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness (in each case, to the extent originally incurred under the “free and clear” prong); (it being understood that (x) amounts under clause (B) (to the extent compliant therewith) shall be deemed to have used prior to utilization of amounts under clause (A) or (C), (y) loans may be incurred under both clauses (A), (B) and (C) above, and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect shall for purposes of determining the Consolidated First Lien Leverage Ratio, Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be given permitted to incur the aggregate principal amount of Indebtedness being so redesignated); and
(iv) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such repayment legal opinion resulting from a change in law, change in fact or change to counsel’s form of Indebtednessopinion reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the incurrence of Indebtedness in respect of Other Notes, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction (or waiver) on the date of such Incremental Amendment (or, in the case of Other Commitments, Other Term Loans and Other Notes, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans or Other Notes, as applicable, in each case, subject to Section 1.11(g)) (the “Incremental Facility Closing Date”) of each of the following conditions:
: (i) (x) no Default or Event of Default exists or shall exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or Other Notes, as applicable; provided, that in the case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, no Event of Default shall exist on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Limited Condition Transaction and no Event of Default under Section 8.01(a) or 8.01(f) shall exist on such Incremental Facility Closing Date and (y) the representations and warranties of the Loan Parties contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments Amendment (although any provided that, to the extent that such representations or and warranties which expressly relate specifically refer to a given date or period an earlier date, they shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that the respective date conditions in clause (y) shall only be required to the extent requested by the Persons providing more than 50.0% of the applicable Incremental Commitments, Other Commitments, Other Term Loans or for the respective periodOther Notes, as the case may be); provided provided, further, that in the case of Incremental Term Commitments (and for the avoidance of doubtCommitments, not in the case of Incremental Revolving Loan Other Commitments) and Incremental , Other Term Loans or Other Notes incurred to finance in connection with a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), if required, only certain customary specified representations (xconformed as necessary for such acquisition, investment or other transaction) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations true and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth correct in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
all material respects; (ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Loan Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 500,000 and shall be in an increment of $1,000,000;
500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below); and (iii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date Other Notes shall not exceed the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as[reserved], such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and plus (B) an additional amount equal to the greater sum, without duplication, of $35,000,000 all (i) voluntary prepayments and 50.0% optional redemptions of LTM EBITDA determined as Term Loans made pursuant to Section 2.05(a) or Section 10.07(l)(x) or mandatory assignments pursuant to Section 3.07 or of the date of incurrence (net of other pari passu Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) above, Section 7.03(m) or otherwise); and
clause (ivi)(A) [reserved];
(v) for purposes of the calculations in definition of “Permitted Ratio Debt” and (ii) voluntary commitment reductions and voluntary prepayments of the Loans under the Revolving Credit Facility or any other pari passu revolving facility incurred pursuant to clause (iiiA) above, Section 7.03(m) or clause (Ai)(A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount definition of Loans available thereunder and (B) “Permitted Ratio Debt” to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.accompanied by a permanent commitment 108
Appears in 1 contract
Samples: Credit Agreement (Redwire Corp)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects (or in all respects, as applicable) as of the on such respective date or for the respective period, as the case may bedates); provided that that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of Incremental Term Commitments (and for an acquisition or other Investment with a purchase price in excess of $100.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an this Section 2.14(4));
(c) the aggregate principal amount that is not less than $5,000,000 of Incremental Loans and Incremental Commitments shall be in an increment not, together with the aggregate principal amount of $1,000,000;Permitted Incremental Equivalent Debt, exceed the sum of:
(iiiA) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2) the aggregate amount of the (w) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and Permitted Incremental Revolving Loan Commitments following Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Delayed Draw Term A Commitment Expiration Date shall not exceed Borrower or any of its Subsidiaries at or below par, in which case the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence voluntary prepayments of such Incremental Term Loans or Permitted Incremental CommitmentsEquivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par), would not cause in each case, only to the Consolidated First Lien Net Leverage Ratio extent such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (determined on a Pro Forma BasisA)(1) above, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established voluntary permanent commitment reductions in respect of Incremental Revolving Loan Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or revolving loan commitments Permitted Incremental Equivalent Debt was incurred under in reliance on Section 7.03(r)(i2.14(4)(c)(A)(1) are fully drawnof the First Lien Credit Agreement, (y) without giving effect to voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(Bits Subsidiaries) and (z) excluding voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the cash prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (1) any borrowing under any such Incremental Revolving Loan Commitmentsother than revolving credit facilities), and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and plus
(B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as portion of the date Facility to be replaced with (or refinanced by) such Incremental Loans and (y) in the case of incurrence any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(net C) solely to the extent not in duplication of Indebtedness incurred pursuant to prepayments, redemptions, repurchases or permanent commitment reductions described in Section 7.03(r)(i)(B2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Section 7.03(r)(ii)(B)Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (it being understood that z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness incurred under or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (B) shall be available at all times and z), so long as such prepayment, redemption or repurchase was not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations previously included in clause (iiix) above; other than, in each case under clauses (Ax) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (Bz), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) to an unlimited amount, so long as in the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment case of Indebtedness.this clause (D) only,
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, no Default or Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the representations conditions of Sections 4.02(i) and warranties in Article V of this Agreement 4.02(ii) shall be true and correct in satisfied (it being understood that all material respects (or, in the case of any representation and warranty that is qualified as references to “materiality,” “Material Adverse Effectthe date of such Credit Extension” or similar language, language in all respects) on and as of such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that, if the incurrence proceeds of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred are being used to finance a Permitted Acquisition or other Investment permitted under hereunder, the reference in Section 7.02(o), (s4.02(i) or (t) that, in any such case, is not conditioned on to the availability accuracy of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be madeshall, but only to the extent agreed by such Incremental Lenders, refer to customary “specifiedspecified representations” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans“specified acquisition representations”;
(iiiii) [reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 20,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v)) and each Incremental Revolving Loan Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v));
(iiiv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Loan Credit Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited $600,000,000 less the aggregate principal amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B7.03(q)(A) at or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause prior to such time plus (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously additional amounts so long as (when aggregated with amounts under clause (Aincurred at or prior to such time pursuant to Section 7.03(q)(B)) or otherwise); and
(iv) [reserved];
(v) for purposes the Senior Loan-to-Value Ratio, determined on a Pro Forma Basis as of the calculations last day of the most recently ended Test Period, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in clause (iii) aboveeach case, (Ax) with respect to any Incremental CommitmentsRevolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder thereunder, (y) without netting the cash proceeds of any such Incremental Loans and (z) including the aggregate amount of Incremental Commitments concurrently established under clause (A) (unless previously repaid), does not exceed 45.0%; and
(vi) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) reaffirmation agreements and/or such amendments to the extent Collateral Documents as may be reasonably requested by the proceeds thereof are used Administrative Agent in order to repay Indebtedness, pro forma effect shall be given to ensure that such repayment Incremental Commitment is provided with the benefit of Indebtednessthe applicable Loan Documents.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default the representations, warranties of the Loan Parties set forth in Section 6 hereof and in the other Loan Documents shall then be true and correct in all material respects (unless qualified by materiality or Event reference to the absence of Default a Material Adverse Effect, in which event they shall exist after giving effect be true and correct), except to the extent that such Incremental Commitments, and the representations and warranties specifically refer to an earlier date, in Article V of this Agreement which case they shall be true and correct in all material respects (or, in the case of except for any representation and warranty that is qualified as by materiality or reference to “materiality,” “Material Adverse Effect” or similar language, in all respects) on which such representation and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period warranty shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or such earlier date, and except that for the respective periodpurposes of this Section 3.6, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder contained in Section 6.5 shall be madedeemed to refer to the most recent statements furnished pursuant to Section 8.1; provided that, but only in connection with any Incremental Amendment the customary “specified” representations and warranties primary purpose of which is to finance a Limited Condition Transaction, the condition set forth in this clause (i) shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default waived (other than with respect to a Default or Event of Default under Section 8.01(a) or (fthe Specified Representations))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(ii) no Event of Default or Default shall have occurred and be continuing or would result from such Loan or the application of the proceeds thereof; provided that, in connection with any Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the condition set forth in this clause (ii) shall be waived (other than with respect to any Specified Event of Default);
(iii) the making of the Incremental Loans shall not contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party or any of the Lenders;
(iv) no Material Adverse Effect shall have occurred since the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent; and
(v) the Borrowers shall have delivered to the Administrative Agent a certificate dated as of the Incremental Facility Closing Date signed by a Responsible Officer of the Borrowing Agent certifying that, before and after giving effect to the Incremental Commitments (and the Incremental Loans contemplated thereby), certifying to clauses (i) through (iv) above;
(vi) the Borrowers shall have delivered to the Administrative Agent a duly executed Incremental Amendment, in accordance with the terms set forth in this Section 3.6;
(vii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall 5,000,000 (provided that such amount may be in an aggregate principal amount that is not less than $5,000,000 10,000,000 and shall be not in an increment of $1,000,0005,000,000 if such amount represents all remaining availability under the limit set forth in Section 3.6(d)(vii)), unless otherwise agreed by the Borrowing Agent and the Administrative Agent;
(iiiviii) the aggregate principal amount of the all Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date Equivalent Debt shall not exceed the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)Cap; and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (Bix) to the extent reasonably requested by the proceeds thereof Administrative Agent, the Administrative Agent shall have received (i) customary legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements, in each case, substantially consistent with the those delivered on the Closing Date under Section 7.1 or otherwise reasonably satisfactory to the Administrative Agent, and (ii) customary documents and filings (including amendments to the Security Documents and any intercreditor agreement) as the Administrative Agent may reasonably require to assure that the Incremental Loans are used secured by the Collateral ratably with (or, to repay Indebtednessthe extent agreed by the applicable Incremental Lenders in the applicable Incremental Amendment, pro forma effect shall be given to such repayment of Indebtednessjunior to) the existing Loans.
Appears in 1 contract
Samples: Term Loan Credit Agreement (Construction Partners, Inc.)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) with respect to any Incremental Commitments, (A) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments incurred to finance a permitted acquisition or other permitted Investments (including in any event a Limited Condition Acquisition) no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.1(a), (b), (h) and for (i) shall exist on (i) the avoidance of doubtdate that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, not or, (ii) in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans Commitments incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o)Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (si) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”ii), (x) such condition regarding an absence of such an Event of Default and the requirement that the representations and warranties have to be made and accurate in all material respects shall be subject to customary “SunGardSungard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary or “specifiedcertain funds” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loanslimitations;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below);
(iii) the aggregate amount of the Incremental Term Loans and Loans, the Incremental Revolving Loan Commitments following the Delayed Draw and Other Term A Commitment Expiration Date Loans shall not exceed the sum of (A) an unlimited amount equal to the greater of (x) $140,000,000 and (y) 100% of LTM Consolidated EBITDA of the Borrower and its Restricted Subsidiaries, plus (B) up to an additional amount of Incremental Term Loans and/or Loans, Incremental Revolving Loan Commitments, Other Commitments and/or Other Term Loans, (i) so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 4.50:1.00, including (ii) to the pro forma effect extent such Indebtedness consists of any Specified Transaction Other Term Loans that are secured on a junior lien basis and not subordinated in right of payment to be financed (in whole or in part) with the proceeds of Term Loans and the Incremental LoanRevolving Loans, and computed (x) assuming all previously established so long as the Consolidated Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without in the case of any Incremental Term Loans, Incremental Revolving Loans, Other Commitments and/or Other Term Loans incurred to finance any permitted acquisition or other Investment that is secured only by Liens permitted under Section 7.2, so long as, after giving effect to such incurrence, the Consolidated Senior Secured Leverage Ratio does not exceed the greater of (I) 5.50:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (II) the Consolidated Senior Secured Leverage Ratio immediately prior to such acquisition or other Investment or (iii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in right of payment to the Term Loans and the Revolving Loans, (x) so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 6.00:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (y) in the case of any Incremental Term Loans, Incremental Revolving Loans, Other Commitments and/or Other Term Loans incurred to finance any permitted acquisition or other Investment that is secured only by Liens permitted under Section 7.2, so long as, after giving effect to such incurrence, the Consolidated Leverage Ratio does not exceed the greater of (I) 6.00:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (II) the Consolidated Leverage Ratio immediately prior to such acquisition or other Investment, in each case determined on the applicable Incremental Facility Closing Date, after giving effect to any concurrent such incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B)or issuance on a Pro Forma Basis, Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitmentsand, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testin each case, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental CommitmentsRevolving Commitment or Incremental Term Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder thereunder, and (B) excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and (y) any Incremental Term Loans, Other Term Loans, Incremental Equivalent Debt and permanent voluntary commitment reductions of the Revolving Commitments, including any Incremental Revolving Commitments (less all such reductions applied to increase the corresponding incremental facility basket under any Incremental Equivalent Debt), other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness (in each case, to the extent originally incurred under the “free and clear” prong); (it being understood that (x) amounts under clause (B) (to the extent compliant therewith) shall be deemed to have used prior to utilization of amounts under clause (A) or (C), (y) loans may be incurred under both clauses (A), (B) and (C) above, and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect shall for purposes of determining the Consolidated First Lien Leverage Ratio, Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be given permitted to incur the aggregate principal amount of Indebtedness being so redesignated); and
(iv) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective Date other than changes to such repayment legal opinion resulting from a change in law, change in fact or change to counsel’s form of Indebtednessopinion reasonably satisfactory to the Administrative Agent.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments), and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date and any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that in connection with a Limited Condition Transaction, the conditions in clause (or x) (other than the condition referenced in all respects, as applicablethe proviso thereto in respect of Section 8.01(1) as and Section 8.01(6)) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided provided, further, that in the case of Incremental Term Commitments an acquisition or other Investment with a purchase price in excess of the greater of (A) $650.0 million and (B) 100.0% of Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance most recently ended Test Period (calculated on a Permitted Acquisition or Investment permitted under Section 7.02(opro forma basis), the conditions contained in clause (sy) or (t) thatwith respect to Specified Representations, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver whether or non-requirement of the absence of a Default or Event of Default (other than not requested by such Persons, unless waived in accordance with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans10.01;
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount available under clauses (A) an unlimited amount through (C) below, the “Available Incremental Amount”):
(A) the sum of (1) the greater of (the “Free and Clear Incremental Amount”) (x) $650.0 million and (y) 100.0% of Consolidated EBITDA of Holdings and its Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), plus (2) any General Debt Basket Reallocated Amount, plus (3) the aggregate principal amount, without duplication, of (x) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or such Permitted Incremental Equivalent Debt by Holdings, such amount on and as the Borrower or any Subsidiaries of Holdings at or below par), in each case, only to the date of the incurrence of extent such Incremental Term Loans or Permitted Incremental Commitments, would not cause Equivalent Debt was incurred in reliance on the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Free and Clear Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnAmount, (y) without giving effect to any concurrent incurrence voluntary permanent commitment reductions in respect of any Indebtedness made pursuant Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case, to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) extent such Incremental Revolving Commitments or Section 7.03(r)(ii)(B) Permitted Incremental Equivalent Debt was incurred in reliance on the Free and Clear Incremental Amount and (z) excluding voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness (or, in the cash proceeds case of any of the foregoing under this clause (1z) any borrowing under any such Incremental Revolving Loan Commitmentsthat constitutes a revolving credit commitment, and voluntary permanent commitment reductions in respect thereof) previously applied to the (2I) prepayment, redemption or repurchase of any Incremental Term LoansLoans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) or (II) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case under sub-clauses (I) and (II), to exceed 3.00 to 1.00 the extent such Indebtedness was originally incurred in reliance on the Free and Clear Incremental Amount (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (3) shall not have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)), plus
(B) (x) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any Facility, an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as portion of the date Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (y) in the case of incurrence any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Commitment or Loan (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred the amounts under this clause (B4)(c)(B), together with the Free and Clear Incremental Amount, the “Non-Ratio Based Incremental Amount”), plus
(C) shall be available at all times and not subject to any ratio testan unlimited amount, whether incurred simultaneously with amounts under so long as in the case of this clause (AC) or otherwiseonly (the “Ratio Based Incremental Amount” and together with the Non-Ratio Based Incremental Amount, the “Available Incremental Amount”); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.,
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental CommitmentsCommitments (provided that, with respect to any Incremental Amendment in connection with a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(i) shall be subject to Section 1.07(11)), and (ii) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date and any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that in connection with a Limited Condition Transaction, the conditions in clause (or i) and in all respects, as applicableclause (ii) as shall (x) only be required to the extent requested by the non-Affiliated Lenders providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, shall be tested at (if applicable) solely on the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed applicable LCT Test Date as selected by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansBorrower pursuant to Section 1.07(11);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5,000,000 (or such lesser amount) if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5,000,000 (or such lesser amount) if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount available under clauses (i) through (iii) below, the “Available Incremental Amount”):
(i) the sum of (I) the greater of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 $73,000,000 and (B) 100% of Consolidated EBITDA of the Borrower for the most recently ended Test Period (calculated on a pro forma basis) (the “Free and Clear Incremental Amount”), plus (II) [reserved], plus (III) the aggregate principal amount, without duplication, of (including, as applicable, prepayments, terminations, redemptions and purchases of such Indebtedness at or below par (provided, that in the case of clauses (A) and (C) below, voluntary prepayments, redemptions and purchases of such Indebtedness below par shall be limited to the amount of cash actually paid by Holdings, the Borrower or any Subsidiary in respect of such Indebtedness)) (the “Voluntary Prepayment Amount”) (A) voluntary prepayments, redemptions or repurchases of (i) Closing Date Term Loans and (ii) Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility), in each case under this clause (ii), to the extent either (X) incurred in reliance on the Non-Ratio Based Incremental Amount or (Y) secured on a pari passu basis with the Closing Date Term Loans (provided, that the relevant prepayment, redemption or repurchase is not funded with long-term Indebtedness (other than (x) revolving Indebtedness and intercompany loans and (y) any Incremental Facility or Permitted Incremental Equivalent Debt then being incurred in reliance on this clause (III)), (B) voluntary prepayments (accompanied by corresponding permanent commitment reductions in respect of (i) the Closing Date Revolving Facility and (ii) Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case under this clause (ii), to the extent either (X) incurred in reliance on the Non-Ratio Based Incremental Amount or (Y) secured on a pari passu basis with the Closing Date Revolving Facility (provided, that the relevant commitment reduction is not funded with long-term Indebtedness (other than (x) revolving Indebtedness and intercompany loans and (y) any Incremental Facility or Permitted Incremental Equivalent Debt then being incurred in reliance on this clause (III)) and (C) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness previously applied, directly or indirectly, to the (a) prepayment, redemption or repurchase of any Indebtedness described in sub-clauses (A) or (B) above or (b) voluntary permanent commitment reductions in respect of revolving credit commitments described in subclause (B) above (provided, that the relevant commitment reduction is not funded with long- term Indebtedness (other than (x) revolving Indebtedness and intercompany loans and (y) any Incremental Facility or Permitted Incremental Equivalent Debt then being incurred in reliance on this clause (III)), plus
(ii) (I) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any Facility secured on a pari passu basis with the Obligations, an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as portion of the date Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (II) in the case of incurrence (net any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) the relevant terminated or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testcancelled Commitment or Loan, whether incurred simultaneously with amounts under clause (A) or otherwise); andplus
(iviii) [reserved];
(v) for purposes an unlimited amount, so long as in the case of the calculations in this clause (iii) aboveonly (the “Incremental Ratio Basket”),
(I) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), (A) with respect to Incremental Loans (other than in respect of Incremental Delayed Draw Term Loan Commitments) or Incremental Revolving Commitments the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder such incurrence does not exceed 2.75 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) and (B) with respect to Incremental Delayed Draw Term Loan Commitments, the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.75 to 1.00 (the condition set forth in this sub-clause (I)(B), the “Delayed Draw Term Loan First Lien Leverage Condition”) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments under this clause (I) are fully drawn and (ii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital),
(II) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the extent Liens on the proceeds thereof are used Collateral securing the First Lien Obligations under this Agreement and for the avoidance of doubt is not incurred pursuant to repay Indebtednessclause (III) below, (A) with respect to Incremental Loans (other than in respect of Incremental Delayed Draw Term Loan Commitments) or Incremental Revolving Commitments the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.25 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) and (B) with respect to Incremental Delayed Draw Term Loan Commitments, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.75 to 1.00 (the condition set forth in this sub-clause (II)(B), the “Delayed Draw Term Loan Secured Leverage Condition”) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments under this clause (I) are fully drawn and (ii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital), or
(III) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured (or, solely for purposes of clause (2) under the definition of “Permitted Incremental Equivalent Debt”, Permitted Incremental Equivalent Debt that is secured by assets that do not constitute Collateral), the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.75 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and (ii) in the case of all Incremental Loans, calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital). In addition, the Borrower may elect to use clause (iii) of the definition of Available Incremental Amount regardless of whether the Borrower has capacity under clauses (i) or (ii) of the definition of Available Incremental Amount. Further, the Borrower may elect to use clause (iii) of the definition of Available Incremental Amount prior to using clauses (i) or (ii) of the definition of Available Incremental Amount, and if both clause (iii) and clauses (i) or (ii) of the definition of Available Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the definition of Available Incremental Amount shall be given automatically reclassified as incurred under clause (iii) of the definition of Available Incremental Amount at such time as the Borrower would meet the applicable leverage-based incurrence test at such time on a pro forma basis, unless otherwise elected by the Borrower. In the case of any Incremental Delayed Draw Term Loan Commitment or Incremental Equivalent Debt in the form of a delayed draw loan or note, for purposes of determining capacity under, and compliance with the Available Incremental Amount (including for purposes of incurring or establishing such Incremental Delayed Draw Term Loan Commitment (and any associated Incremental Delayed Draw Term Loan) or Incremental Equivalent Debt in the form of a delayed draw term loan or note), such Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall be incurred as and when the applicable Incremental Delayed Draw Term Loan or Incremental Equivalent Debt is funded (and shall be deemed not to be drawn, or incurred under the Available Incremental Amount, prior to the funding thereof) (for the avoidance of doubt, capacity under the Available Incremental Amount with respect to incurring such repayment Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall be determined as of Indebtednessthe applicable date of funding thereunder (and not as of the date the corresponding delayed draw commitments are established)).
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, and with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the Equity Interests of, another Person, this clause (i) may be waived or omitted by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Amendment;
(ii) the representations and warranties of each Loan Party set forth in Article V of this Agreement and in each other Loan Document shall be true and correct in all material respects (oron and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in the which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects (or in all respects, as applicable) as of the on such respective date or for the respective period, as the case may be)dates; provided that in further that, with respect to any Incremental Amendment the case primary purpose of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred which is to finance a Permitted Acquisition or any other Investment permitted under Section 7.02(o)by this Agreement constituting an acquisition of assets constituting a business unit, (s) line of business or (t) thatdivision of, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement all or substantially all of the absence of a Default or Event of Default Equity Interests of, another Person, this clause (ii) (other than with respect to a Default the Specified Representations) may be waived or Event omitted (or the scope or content of Default any representation and warranty modified) by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansAmendment;
(iiiii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall (provided that such amount may be in an aggregate principal amount that is not less than $5,000,000 and shall be 10,000,000 if such amount represents all remaining availability under the limit set forth in an increment of $1,000,000the next sentence);
(iiiiv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Loan Credit Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) $150,000,000 in the aggregate pursuant to this clause (A) or (B) at the Borrower’s option, up to an unlimited amount of Incremental Term Loans and/or or Incremental Revolving Loan Credit Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined is no more than 4.25 to 1.00 for the Test Period most recently ended, after giving effect to any such incurrence on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (and, in whole or in part) with the proceeds of the Incremental Loaneach case, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental CommitmentsRevolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder (or if the Incremental Facility will rank junior in right of security with the Revolving Credit Loans and the Term Loans, up to an amount of Incremental Term Loans or Incremental Revolving Credit Commitments so long as the Total Net Leverage Ratio is no more than 5.50 to 1.00 for the Test Period most recently ended, after giving effect to any such incurrence on a Pro Forma Basis, and, in each case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder) (such amounts under this clause (A) and (B), the “Available Incremental Amount”); and
(v) (A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (i) legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) (other than changes to such legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and (ii) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Incremental Loans or Incremental Commitments, as applicable, are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the proceeds thereof are used to repay Indebtednessapplicable Incremental Amendment, pro forma effect shall be given to such repayment of Indebtednessother conditions as the Borrower and the Lenders providing such Incremental Commitments may agree.
Appears in 1 contract
Samples: Credit Agreement (Bright Horizons Family Solutions Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for an acquisition or other Investment with a purchase price in excess of $100.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of of: (A) an unlimited (1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or Permitted Incremental Equivalent Debt by Holdings, such the Borrower or any of its Subsidiaries at or below par, in which case the amount on and as of the date of the incurrence voluntary prepayments of such Incremental Term Loans or Permitted Incremental CommitmentsEquivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par), would not cause in each case, only to the Consolidated First Lien Net Leverage Ratio extent such Incremental Term Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (determined on a Pro Forma BasisA)(1) above, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established voluntary permanent commitment reductions in respect of Incremental Revolving Loan Commitments or Permitted Incremental Equivalent Debt consisting of revolving loan commitments credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred under Section 7.03(r)(iin reliance on clause (A)(1) are fully drawnabove, (y) without giving effect to voluntary prepayments, redemption or repurchase of Second Lien Incremental Usage Amount Debt (including purchases of Second Lien Incremental Usage Amount Debt by Holdings, the Borrower or any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(Bits Subsidiaries) and (z) excluding voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the cash proceeds prepayment, redemption or repurchase of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term LoansLoans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) to exceed 3.00 to 1.00 and incurred in reliance on clause (BA)(1) an additional amount equal to above or any Second Lien Incremental Usage Amount Debt, in the greater case of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and z), so long as such prepayment, redemption or repurchase was not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations previously included in clause (iiiw) or clause (y) above; other than, in each case under clauses (w), (Ay) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the z), from proceeds thereof are used to repay Indebtednessof long-term Indebtedness (other than revolving credit facilities), pro forma effect shall be given to such repayment of Indebtedness.plus
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement that is not conditioned upon obtaining third-party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons holding more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for any such acquisition or other Investment with a purchase price in excess of $20.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of of:
(A) an unlimited (1) the greater of (i) $200.0 million and (ii) 100% of Consolidated EBITDA of the Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis)$150.0 million plus (2) the aggregate amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, voluntary prepayments of Term Loans (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any including Incremental Term Loans) to exceed 3.00 to 1.00 and Permitted Incremental Equivalent Debt (Bother than Permitted Incremental Equivalent Debt consisting of revolving credit facilities) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as (including purchases of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.or
Appears in 1 contract
Samples: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the incurrence of Indebtedness in respect of Other Notes, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction (or waiver) on the date of such Incremental Amendment (or, in the case of Other Commitments, Other Term Loans and Other Notes, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans or Other Notes, as applicable, in each case, subject to Section 1.11(g)) (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) no Default or Event of Default exists or shall exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or Other Notes, as applicable; provided, that in the case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, no Event of Default shall exist on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Limited Condition Transaction and no Event of Default under Section 8.01(a) or 8.01(f) shall exist on such Incremental Facility Closing Date and (y) the representations and warranties of the Loan Parties contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments Amendment (although any provided that, to the extent that such representations or and warranties which expressly relate specifically refer to a given date or period an earlier date, they shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that the respective date conditions in clause (y) shall only be required to the extent requested by the Persons providing more than 50.0% of the applicable Incremental Commitments, Other Commitments, Other Term Loans or for the respective periodOther Notes, as the case may be); provided provided, further, that in the case of Incremental Term Commitments (and for the avoidance of doubtCommitments, not in the case of Incremental Revolving Loan Other Commitments) and Incremental , Other Term Loans or Other Notes incurred to finance in connection with a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), if required, only certain customary specified representations (xconformed as necessary for such acquisition, investment or other transaction) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations true and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth correct in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loansall material respects;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Loan Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 500,000 and shall be in an increment of $1,000,000;500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below); and
(iii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date Other Notes shall not exceed the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of (x) $35,000,000 7,500,000 and 50.0(y) 75% of LTM Consolidated EBITDA determined as of the date last day of incurrence the most recently ended Test Period (net calculated on a Pro Forma Basis) minus the aggregate principal amount of Indebtedness incurred pursuant to clause (i)(A) of the definition of “Permitted Ratio Debt”, plus (B) an amount equal to the sum, without duplication, of all (i) voluntary prepayments and optional redemptions of Term Loans made pursuant to Section 7.03(r)(i)(B2.05(a) or Section 7.03(r)(ii)(B10.07(l)(x) or mandatory assignments pursuant to Section 3.07 or of other pari passu Indebtedness incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” and (ii) voluntary commitment reductions and voluntary prepayments of the Loans under the Revolving Credit Facility or any other pari passu revolving facility incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” to the extent accompanied by a permanent commitment reduction, (in each case, including any substantially concurrent prepayment, redemption, reduction, termination, buy-back (the amount of any debt buy backs limited to the cash payment actually made in respect thereof) or purchase, other than to the extent funded with (A) proceeds of long term Indebtedness (other than revolving Indebtedness or intercompany Indebtedness) or (B) proceeds of Indebtedness incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” plus (C) an unlimited amount so long as, in the case of this clause (C) only, such amount at such time could be incurred without causing (x) in the case of Indebtedness secured by Liens on the Collateral that rank pari passu with the Liens securing the Initial Term Loans, the Consolidated Senior Secured Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, (y) in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, and (z) in the case of unsecured Indebtedness, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, in each case, after giving effect to any acquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepayment of Indebtedness in connection therewith), and assuming for purposes of this calculation that (i) the full committed amount of any Additional Revolving Commitments or Revolving Commitment Increases then being made or incurred shall be treated as fully drawn and outstanding for such purpose and (ii) cash proceeds of any such Incremental Facility or other Indebtedness permitted hereunder then being incurred shall not be netted from Consolidated Total Net Debt, Consolidated Secured Net Debt or Consolidated Senior Secured Net Debt, as applicable, for purposes of calculating such Consolidated Senior Secured Net Leverage Ratio, Consolidated Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio, as applicable; provided, however, that if amounts incurred under this clause (C) are incurred concurrently with the incurrence of Incremental Loans in reliance on clause (A) and/or clause (B) above, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio shall be permitted to exceed the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, set forth in clause (C) above to the extent of such amounts incurred in reliance on clause (A) and/or clause (B) (solely for the purpose of determining whether such concurrently incurred amounts incurred under this clause (C) are permissible) (it being understood that (I) if the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, incurrence test is met, then, at the election of the Lead Borrower, any Incremental Facility or other Indebtedness permitted hereunder may be incurred under this clause (C) above regardless of whether there is capacity under clause (A) and/or clause (B) above and (II) any portion of any Incremental Facility or other Indebtedness permitted hereunder incurred in reliance on clause (A) and/or clause (B) shall be available at all times and not subject to any ratio test, whether automatically reclassified (unless otherwise elected by the Lead Borrower) as incurred simultaneously with amounts under clause (AC) or otherwise); and
(iv) [reserved];
(v) for purposes of if the calculations in Borrowers meet the applicable leverage ratio under clause (iiiC) above, (A) with respect to any Incremental Commitments, assuming at such time on a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of IndebtednessPro Forma Basis).
Appears in 1 contract
Samples: Credit Agreement (Redwire Corp)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment Amendment) specified therein (the “Incremental Facility Closing Amendment Date”) of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V conditions of this Agreement Section 2.2 shall be true and correct in satisfied (it being understood that all material respects (or, in the case of any representation and warranty that is qualified as references to “materiality,” “Material Adverse Effectthe date of such Credit Extension” or similar languagelanguage in such Section 2.2 shall be deemed to refer to the Incremental Amendment Date); provided, that, such Incremental Amendment may include a waiver by the Incremental Lenders party thereto of the condition set forth in Section 2.2(c) and, in all respects) on and as connection with any Incremental Commitment, the primary purpose of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred is to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (eachAcquisition, a “Limited Condition Transaction”), waiver in full or in part of the conditions set forth in clauses (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accuratea) and (2b) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or any Event of Default under Section 8.01(a7.1(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loansof Section 2.2;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 1.12(d)(iii)) and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 1.12(d)(iii)); provided that the aggregate amount of all Revolving Commitment Increases consummated under this Section 1.12 shall not exceed $125,000,000100,000,000;
(iii) solely in the aggregate amount case of the making of Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of Loans, after giving Pro Forma Effect to both (A) an unlimited amount the making of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of under such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 Amendment and (B) an additional amount equal to any Specified Transactions consummated in connection therewith, the Asset Coverage Ratio for the most recently ended Test Period shall be greater than the greater of $35,000,000 (x) 1.50:1.00 and 50.0% of LTM EBITDA determined (y) the ratio as of set forth in Section 6.1 hereof for the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)most recently ended Test Period; and
(iv) [reserved];
(v) for purposes to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of the calculations in clause (iii) above, (A) customary legal opinions, board resolutions and officers’ certificates (including solvency certificates) consistent with respect those delivered on the Closing Date (conformed as appropriate) other than changes to any Incremental Commitmentssuch legal opinions resulting from a change in law, assuming a borrowing change in fact or change to counsel’s form of opinion reasonably satisfactory to the maximum amount of Loans available thereunder Administrative Agent and (B) reaffirmation agreements and/or such amendments to the extent Collateral Documents as may be reasonably requested by the proceeds thereof Administrative Agent in order to ensure that such Incremental Lenders are used to repay Indebtedness, pro forma effect shall be given to such repayment provided with the benefit of Indebtednessthe applicable Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (SelectQuote, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for an acquisition or other Investment with a purchase price in excess of $100.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of of:
(A) an unlimited (1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or Permitted Incremental Equivalent Debt by Holdings, such the Borrower or any of its Subsidiaries at or below par, in which case the amount on and as of the date of the incurrence voluntary prepayments of such Incremental Term Loans or Permitted Incremental CommitmentsEquivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par), would not cause in each case, only to the Consolidated First Lien Net Leverage Ratio extent such Incremental Term Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (determined on a Pro Forma BasisA)(1) above, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established voluntary permanent commitment reductions in respect of Incremental Revolving Loan Commitments or Permitted Incremental Equivalent Debt consisting of revolving loan commitments credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred under Section 7.03(r)(iin reliance on clause (A)(1) are fully drawnabove, (y) without giving effect to voluntary prepayments, redemption or repurchase of Second Lien Incremental Usage Amount Debt (including purchases of Second Lien Incremental Usage Amount Debt by Holdings, the Borrower or any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(Bits Subsidiaries) and (z) excluding voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the cash proceeds prepayment, redemption or repurchase of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) incurred in reliance on clause (A)(1) above or any Second Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities); provided, that for the avoidance of doubt, this clause (A) shall not give credit to any prepayment of Closing Date Term Loans with the proceeds of, or by the conversion into, Term B Loans) to exceed 3.00 to 1.00 and , plus (B) (x) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any Facility, an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as portion of the date Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (y) in the case of incurrence (net of Indebtedness incurred pursuant any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes the portion of the calculations in clause (iii) aboverelevant terminated or cancelled Commitment or Loan, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.plus
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and ;
(ii) the representations and warranties of each Loan Party set forth in Article V of this Agreement and in each other Loan Document shall be true and correct in all material respects (oron and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in the which case they shall be true and correct in all material respects as of such earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects (or in all respects, as applicable) as of the on such respective date or for the respective period, as the case may be)dates; provided that in further that, with respect to any Incremental Amendment the case primary purpose of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred which is to finance a Permitted Acquisition or Investment an acquisition permitted under Section 7.02(o)by this Agreement, this clause (sii) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event the Specified Representations as they relate to the target of Default under Section 8.01(a) or such acquisition (f)conformed as reasonably necessary for such acquisition)) and (y) may be waived or omitted by Incremental Lenders holding more than 50% of the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the aggregate Incremental Term Lenders providing Commitments under such Incremental Term Commitments and Incremental Term LoansAmendment;
(iiiii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in clause (iv) of this Section 2.14(d)) and each Incremental Revolving Loan Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 10,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in clause (iv) of this Section 2.14(d));
(iiiiv) the aggregate amount of the Incremental Term Loans Loans, the Incremental Revolving Credit Commitments and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date Equivalent Debt shall not exceed the sum of (A) an unlimited $35,000,000 minus (x) the aggregate amount of Incremental Equivalent Debt incurred in reliance on Section 7.03(k)(A)(i)(x) and (y) the Incremental Second Lien Usage Amount plus (B) at its option, additional amounts of Incremental Term Loans or Incremental Revolving Credit Commitments so long as, in the case of this clause (B) only, (1) with respect to Incremental Term Loans, Incremental Revolving Credit Commitments secured by the Collateral on a pari passu basis with the Term B Loans and the Revolving Credit Facility, the First Lien Leverage Ratio is no more than 4.00 to 1.00 and (2) with respect to Incremental Term Loans and/or Incremental Revolving Loan Credit Commitments so long asthat are secured by the Collateral on a junior basis to the Term B Loans and the Revolving Credit Facility, such amount on and the Total Leverage Ratio is no more than 6.00 to 1.00, in each case as of the date last day of the Test Period most recently ended, after giving effect to any such incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (and, in whole or in part) with the proceeds of the Incremental Loaneach case, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental CommitmentsRevolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder and (y) the cash proceeds from such Incremental Term Loans and Incremental Revolving Loans shall not be netted against Indebtedness for purposes of the calculation of First Lien Leverage Ratio or Total Leverage Ratio, as applicable, related to such incurrence);
(A) the aggregate amount of any Incremental Revolving Credit Commitments, when taken together with all other Incremental Revolving Credit Commitments to date, shall not exceed an amount equal to fifty percent (50%) of Consolidated EBITDA for the most recent period of four (4) consecutive fiscal quarters for which financial statements are internally available and (B) to unless otherwise agreed by the extent the proceeds thereof are used to repay IndebtednessAdministrative Agent in its reasonable discretion, pro forma effect there shall be given to no more than three tranches at any time outstanding under the Revolving Credit Facility and Incremental Revolving Credit Commitments; and
(vi) such repayment of Indebtednessother conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Term Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) subject to Section 1.09(f), no Default or Event of Default shall exist or would exist after giving effect to such Incremental Term Commitments;
(ii) subject to Section 1.09(f), and the representations and warranties of each Loan Party set forth in Article V of this Agreement IV and in each other Loan Document shall be true and correct in all material respects (oron and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in the which case they shall be true and correct in all material respects as of such earlier date; provided that (i) any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates and (or in all respects, as applicableii) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (the representation and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted warranty under Section 7.02(o4.05(b), (s) or (t) that, in any such case, is not conditioned a Material Adverse Effect that previously existed but that has ceased to exist on the availability of financing (each, a “Limited Condition Transaction”), (x) date that such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations representation and warranties hereunder shall be warranty is being made, but only the customary “specified” representations shall not result in such representation and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loanswarranty being untrue;
(iiiii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall (provided that such amount may be in an aggregate principal amount that is not less than $5,000,000 and shall be 25,000,000 if such amount represents all remaining availability under the limit set forth in an increment of $1,000,000clause (iv) below);
(iiiiv) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of Available Incremental Amount; and
(v) (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B)extent reasonably requested by the Administrative Agent, Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds receipt by the Administrative Agent of (1) any borrowing under any customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) (other than changes to such Incremental Revolving Loan Commitmentslegal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and (2) any reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to Loans are provided with the greater of $35,000,000 and 50.0% of LTM EBITDA determined as benefit of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testapplicable Loan Documents, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent provided in the proceeds thereof are used to repay Indebtednessapplicable Incremental Amendment, pro forma effect shall be given to such repayment of Indebtednessother conditions as the Borrowers and the Lenders providing such Incremental Term Commitments may agree.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, in the case of Incremental Commitments the primary purpose of which is to finance a Limited Condition Transaction, only the Specified Representations (conformed as necessary for such transaction) shall be required to be true and correct in all material respects) (provided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with a Limited Condition Transaction, the conditions in clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons holding more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for an acquisition or other Investment with a purchase price in excess of $75,000,000, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
(A) the sum of (Ax) an unlimited amount greater of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on (i) $158,000,000 and as (ii) 100% of Consolidated EBITDA of the date Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), plus (y) the Reallocated Debt Basket Amount (if any), plus
(B) (x) in the case of the incurrence of such any Incremental Term Loans or Incremental Commitments, would not cause Commitments that effectively extend the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect Maturity Date of any Specified Transaction Facility, an amount equal to the portion of the Facility to be financed replaced with such Incremental Loans or Incremental Commitments and (y) in whole the case of any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is assigned or terminated in part) accordance with Section 3.07, an amount equal to the proceeds portion of the Incremental relevant assigned or terminated Commitment or Loan, and computed ; plus
(C) (x) assuming all previously established and simultaneously established Incremental the amount of any voluntary prepayment of any Term Loan and/or any permanent reduction of any Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnCommitments, (y) without giving effect to any concurrent incurrence the amount of any voluntary prepayment, redemption or repurchase of (or permanent reduction of commitments under) any Credit Agreement Refinancing Indebtedness made pursuant previously applied to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(Bprepayment of any Term Loans and/or any permanent reduction of any Revolving Commitments so long as prepayment was not previously included in clause (x) and (z) excluding the cash proceeds amount paid in respect of any reduction in the outstanding principal amount of Term Loans resulting from assignments to (1and purchases by) Holdings, the Borrower or any borrowing under any such Incremental Revolving Loan CommitmentsRestricted Subsidiary; provided that for each of clauses (x), (y) and (2z) any Incremental Term Loans) to exceed 3.00 to 1.00 the relevant prepayment or assignment and purchase is not funded with Funded Debt (Bother than revolving Indebtedness); plus
(D) an additional amount equal to unlimited amount, so long as in the greater case of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (BD) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.only,
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment Amendment) specified therein (the “Incremental Facility Closing Amendment Date”) of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) no Default or Event of Default shall exist immediately before or after giving effect to such Incremental CommitmentsLoans; provided that, and in connection with any Incremental Commitment the primary purpose of which is to finance a Permitted Acquisition or other Permitted Business Investment, an Event of Default (other than an Event of Default under Section 10.01(a), Section 10.01(b), Section 10.01(g) or Section 10.01(h)) may exist;
(ii) the representations and warranties of the Loan Parties contained in Article V of this Agreement the Loan Documents shall be true and correct in all material respects immediately prior to and after giving effect to such Incremental Loans; provided that (or, A) solely in the case of any representation Incremental Commitments the primary purpose of which is to finance a Permitted Acquisition or other Permitted Business Investment, only the Specified Representations (as opposed to all representations and warranty that is warranties) shall be true and correct in all material respects, (B) to the extent such representations and warranties expressly relate to an earlier date, such representations and warranties shall be true and correct in all material respects as of such earlier date; and (C) to the extent such representations and warranties are qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required true and correct (after giving effect to be accurateany qualification therein) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time all respects on such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loansrespective dates;
(iiiii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0005,000,000;
(iiiiv) the aggregate outstanding principal amount of all Loans made on the Effective Date plus the aggregate outstanding principal amount of all Incremental Term Loans and shall in no event exceed $300,000,000, less any principal amounts prepaid pursuant to Section 3.04; and
(v) after giving pro forma effect to the making of Incremental Revolving Loan Commitments following Loans under such Incremental Amendment and, in the Delayed Draw Term A Commitment Expiration Date shall not exceed case of any Incremental Commitments, the sum primary purpose of which is to finance a Permitted Acquisition or any other Permitted Business Investment, the consummation of such Permitted Acquisition or other Permitted Business Investment, as applicable, (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and the Senior Secured Leverage Ratio as of the date of the incurrence of such Incremental Term Loans most recently ended fiscal quarter for which financial statements are in existence shall be equal to or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 less than 2.75 to 1.00 and (B) an additional amount the PDP PV10 to Senior Secured Funded Debt Ratio shall be greater than or equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant 1.10 to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness1.00.
Appears in 1 contract
Samples: Second Lien Credit Agreement (Atlas Resource Partners, L.P.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.customary
Appears in 1 contract
Samples: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment Investments permitted under Section 7.02(o), ) or (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including waiver or non-requirement of (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Secured Net Leverage Ratio set forth in clause (iii)(Aiii)(C) below may, at the Borrower’s Borrowers’ election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansCommitments;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited amount equal to $50,000,000 (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(A) or (ii)(A)) plus (B) up to an additional amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount as on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Secured Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) drawn and (z) excluding the cash proceeds of (1x) any borrowing under any such Incremental Revolving Loan Commitments, and (2y) any Incremental Term Loans) to exceed 3.00 to 1.00 Loans and (Bz) an additional amount equal any other Indebtedness that is incurred substantially concurrently therewith) is no more than 3.75 to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)1.00; and
(iv) [reserved];the Loan Parties shall demonstrate compliance with the financial covenant set forth in Section 7.11 (determined on a Pro Forma Basis and assuming all previously established and simultaneously established Incremental Revolving Loan Commitments are fully drawn and excluding the cash proceeds of (x) any borrowing under any such Incremental Revolving Loan Commitments, (y) any Incremental Term Loans and (z) any other Indebtedness that is incurred substantially concurrently therewith) as of the most recent fiscal quarter end for which financial statements have been delivered or were required to be delivered pursuant to Section 4.01 or 6.01.
(v) for purposes of the calculations in clause clauses (iii) and (iv) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and thereunder, (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of IndebtednessIndebtedness and (C) Indebtedness incurred under clause (iii)(A) above shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (iii)(C) or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the Incremental Facility Closing Date (which shall be no earlier than the date of such Incremental Amendment (the “Incremental Facility Closing Date”Amendment) specified therein of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the conditions of Section 3.03 shall be satisfied (it being understood that all references to “as of such Credit Date” or similar language in such Section 3.03 shall be deemed to refer to the Incremental Facility Closing Date); provided that, if the proceeds of such Incremental Commitment are used to finance a Limited Condition Transaction, (x) the references in Section 3.03(a)(ii) to the accuracy of the representations and warranties in Article V shall refer to the accuracy of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the that would constitute customary “specifiedspecified representations” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default Credit Parties (other than with respect after giving effect to a Default or Event of Default under Section 8.01(a) or (f))the Limited Condition Transaction) and (y) the Consolidated First Lien Net Leverage Ratio set forth references in clause (iii)(ASection 3.03(a)(iii) below may, at the Borrower’s election, be tested to any Default or Event of Default shall only refer to no Event of Default at the time that the definitive transaction agreement for such Limited Condition Transaction is committed and will not be tested upon consummation thereofentered into and, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitmentsthereof, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, both immediately before and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without immediately after giving effect to any concurrent incurrence thereto, no Specified Event of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) Default shall have occurred and be continuing or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved]would result therefrom;
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the incurrence of Indebtedness in respect of Other Notes, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction (or waiver) on the date of such Incremental Amendment (or, in the case of Other Commitments, Other Term Loans and Other Notes, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans or Other Notes, as applicable, in each case, subject to Section 1.11(g)) (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) no Default or Event of Default exists or shall exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or Other Notes, as applicable; provided, that in the case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, no Event of Default shall exist on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Limited Condition Transaction and no Event of Default under Section 8.01(a) or 8.01(f) shall exist on such Incremental Facility Closing Date and (y) the representations and warranties of the Loan Parties contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments Amendment (although any provided that, to the extent that such representations or and warranties which expressly relate specifically refer to a given date or period an earlier date, they shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that the respective date conditions in clause (y) shall only be required to the extent requested by the Persons providing more than 50.0% of the applicable Incremental Commitments, Other Commitments, Other Term Loans or for the respective periodOther Notes, as the case may be); provided provided, further, that in the case of Incremental Term Commitments (and for the avoidance of doubtCommitments, not in the case of Incremental Revolving Loan Other Commitments) and Incremental , Other Term Loans or Other Notes incurred to finance in connection with a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), if required, only certain customary specified representations (xconformed as necessary for such acquisition, investment or other transaction) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations true and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth correct in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loansall material respects;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Loan Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 500,000 and shall be in an increment of $1,000,000;500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below); and
(iii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date Other Notes shall not exceed the sum of (A) [reserved], plus (B) an amount equal to the sum, without duplication, of all (i) voluntary prepayments and optional redemptions of Term Loans made pursuant to Section 2.05(a) or Section 10.07(l)(x) or mandatory assignments pursuant to Section 3.07 or of other pari passu Indebtedness incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” and (ii) voluntary commitment reductions and voluntary prepayments of the Loans under the Revolving Credit Facility or any other pari passu revolving facility incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” to the extent accompanied by a permanent commitment reduction, (in each case, including any substantially concurrent prepayment, redemption, reduction, termination, buy-back (the amount of any debt buy backs limited to the cash payment actually made in respect thereof) or purchase, other than to the extent funded with (A) proceeds of long term Indebtedness (other than revolving Indebtedness or intercompany Indebtedness) or (B) proceeds of Indebtedness incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” plus (C) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, in the case of this clause (C) only, such amount at such time could be incurred without causing (x) in the case of Indebtedness secured by Liens on and as of the date of Collateral that rank pari passu with the incurrence of such Incremental Liens securing the Initial Term Loans or Incremental CommitmentsLoans, would not cause the Consolidated First Lien Senior Secured Net Leverage Ratio (determined calculated on a Pro Forma Basis, including the pro forma effect of any Specified Transaction ) to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnexceed 4.50:1.00, (y) without in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, and (z) in the case of unsecured Indebtedness, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, in each case, after giving effect to any concurrent incurrence acquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepayment of Indebtedness in connection therewith), and assuming for purposes of this calculation that (i) the full committed amount of any Indebtedness Additional Revolving Commitments or Revolving Commitment Increases then being made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) incurred shall be treated as fully drawn and outstanding for such purpose and (zii) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan CommitmentsFacility or other Indebtedness permitted hereunder then being incurred shall not be netted from Consolidated Total Net Debt, and Consolidated Secured Net Debt or Consolidated Senior Secured Net Debt, as applicable, for purposes of calculating such Consolidated Senior Secured Net Leverage Ratio, Consolidated Secured Net Leverage Ratio or Consolidated Total Net Leverage Ratio, as applicable; provided, however, that if amounts incurred under this clause (2C) any are incurred concurrently with the incurrence of Incremental Term LoansLoans in reliance on clause (A) to exceed 3.00 to 1.00 and and/or clause (B) an additional amount equal above, the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio shall be permitted to exceed the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, set forth in clause (C) above to the greater extent of $35,000,000 and 50.0% such amounts incurred in reliance on clause (A) and/or clause (B) (solely for the purpose of LTM EBITDA determined as of the date of incurrence determining whether such concurrently incurred amounts incurred under this clause (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(BC) or Section 7.03(r)(ii)(B)are permissible) (it being understood that (I) if the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, incurrence test is met, then, at the election of the Lead Borrower, any Incremental Facility or other Indebtedness permitted hereunder may be incurred under this clause (C) above regardless of whether there is capacity under clause (A) and/or clause (B) above and (II) any portion of any Incremental Facility or other Indebtedness permitted hereunder incurred in reliance on clause (A) and/or clause (B) shall be available at all times and not subject to any ratio test, whether automatically reclassified (unless otherwise elected by the Lead Borrower) as incurred simultaneously with amounts under clause (AC) or otherwise); and
(iv) [reserved];
(v) for purposes of if the calculations in Borrowers meet the applicable leverage ratio under clause (iiiC) above, (A) with respect to any Incremental Commitments, assuming at such time on a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of IndebtednessPro Forma Basis).
Appears in 1 contract
Samples: Credit Agreement (Redwire Corp)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, no Default or Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the representations conditions of Sections 4.02(i) and warranties in Article V of this Agreement 4.02(ii) shall be true and correct in satisfied (it being understood that all material respects (or, in the case of any representation and warranty that is qualified as references to “materiality,” “Material Adverse Effectthe date of such Credit Extension” or similar language, language in all respects) on and as of such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that, if the incurrence proceeds of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred are being used to finance a Permitted Acquisition or other Investment permitted under hereunder, the reference in Section 7.02(o), (s4.02(i) or (t) that, in any such case, is not conditioned on to the availability accuracy of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be madeshall, but only to the extent agreed by such Incremental Lenders, refer to customary “specifiedspecified representations” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans“specified acquisition representations”;
(iiiii) [reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 20,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v)) and each Incremental Revolving Loan Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v));
(iiiv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Loan Credit Commitments following incurred after the Delayed Draw Term A Commitment Expiration Fourth Amendment Effective Date shall not exceed the sum of (A) an unlimited $600,000,000 less the aggregate principal amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B7.03(q)(A) at or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause prior to such time plus (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously additional amounts so long as (when aggregated with amounts under clause (Aincurred at or prior to such time pursuant to Section 7.03(q)(B)) or otherwise); and
(iv) [reserved];
(v) for purposes the Senior Loan-to-Value Ratio, determined on a Pro Forma Basis as of the calculations last day of the most recently ended Test Period, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in clause (iii) aboveeach case, (Ax) with respect to any Incremental CommitmentsRevolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder thereunder, (y) without netting the cash proceeds of any such Incremental Loans and (z) including the aggregate amount of Incremental Commitments concurrently established under clause (A) (unless previously repaid), does not exceed 45.0%; and
(vi) to the extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ClosingFourth Amendment Effective Date other than changes to such legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) reaffirmation agreements and/or such amendments to the extent Collateral Documents as may be reasonably requested by the proceeds thereof are used Administrative Agent in order to repay Indebtedness, pro forma effect shall be given to ensure that such repayment Incremental Commitment is provided with the benefit of Indebtednessthe applicable Loan Documents.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement that is not conditioned upon obtaining third-party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons holding more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for any such acquisition or other Investment with a purchase price in excess of $20.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided US-DOCS\122695800.10 that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of of:
(A) an unlimited (1) $150.0 million plus (2) the aggregate amount of (x) voluntary prepayments of Term Loans (including Incremental Term Loans) and Permitted Incremental Equivalent Debt (other than Permitted Incremental Equivalent Debt consisting of revolving credit facilities) (including purchases of the Loans or Permitted Incremental Equivalent Debt by the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Loans or Permitted Incremental Equivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par), in the case of prepayments of Incremental Term Loans and/or or Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt, such amount on and as of only to the date of the incurrence of extent such Incremental Term Loans or Permitted Incremental Commitments, would not cause Equivalent Debt was secured on a pari passu basis with the Consolidated First Lien Net Leverage Ratio Obligations under this Agreement and incurred in reliance on clause (determined A)(1) above and (y) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was secured on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) pari passu basis with the proceeds of the Incremental LoanFirst Lien Obligations under this Agreement and incurred in reliance on clause (A)(1) above, and computed other than, in each case under clauses (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash from proceeds of long-term Indebtedness (1) any borrowing under any such Incremental Revolving Loan Commitmentsother than revolving Indebtedness), and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and plus
(B) an additional amount equal to unlimited amount, so long as in the greater case of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.only,
Appears in 1 contract
Samples: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) with respect to any Incremental Commitments, (A) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments incurred to finance a permitted acquisition or other permitted Investments (including in any event a Limited Condition Acquisition) no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.1(a), (b), (h) and for (i) shall exist on (i) the avoidance of doubtdate that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, not or, (ii) in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans Commitments incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o)Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (si) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”ii), (x) such condition regarding an absence of such an Event of Default and the requirement that the representations and warranties have to be made and accurate in all material respects shall be subject to customary “SunGardSungard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary or “specifiedcertain funds” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loanslimitations;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below);
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Other Term A Commitment Expiration Date Loans shall not exceed the sum of (A) an unlimited amount equal to $100,000,000 (minus the aggregate amount of Indebtedness incurred pursuant to Section 2.23(d)(iii)(A) of the First Lien Credit Agreement), plus (B) up to an additional amount of Incremental Term Loans Loans, Other Commitments and/or Incremental Revolving Loan Commitments Other Term Loans, (i) so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 or (ii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in right of payment to the Term Loans, including so long as the pro forma effect of any Specified Transaction Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to be financed (in whole or in part) with the proceeds less than 6.00:1.00 as of the last day of the most recently ended period of four fiscal quarters of the Borrower for which financial statements are available, determined on the applicable Incremental LoanFacility Closing Date, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without after giving effect to any concurrent such incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B)or issuance on a Pro Forma Basis, Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitmentsand, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testin each case, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental CommitmentsTerm Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder thereunder, and (B) excluding the cash proceeds of any such Incremental Term Loans Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement and under the First Lien Credit Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and the First Lien Term Loans and (y) any Incremental Term Loans, Other Term Loans, First Lien Incremental Indebtedness (other than First Lien Incremental Revolving Loans), Incremental Equivalent Debt or First Lien Incremental Equivalent Debt and permanent voluntary commitment reductions of the First Lien Revolving Commitments, including any First Lien Incremental Revolving Commitments (less all such reductions applied to increase the corresponding incremental facility basket under the First Lien Credit Agreement, First Lien Incremental Equivalent Debt or Incremental Equivalent Debt), other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness(in each case, to the extent originally incurred under the “free and clear” prong); (it being understood that (x) amounts under clause (B) (to the extent compliant therewith) shall be deemed to have used prior to utilization of amounts under clause (A) or (C), (y) loans may be incurred under both clauses (A), (B) and (C) above, and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect shall for purposes of determining the Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be given permitted to incur the aggregate principal amount of Indebtedness being so redesignated); and
(iv) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such repayment legal opinion resulting from a change in law, change in fact or change to counsel’s form of Indebtednessopinion reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for an acquisition or other Investment with a purchase price in excess of $100.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of of:
(A) an unlimited (1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount (for the avoidance of doubt, it being agreed that as of the Third Amendment Effective Date, no Incremental Loans or Incremental Commitments have been incurred pursuant to this clause (1)) plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or Permitted Incremental Equivalent Debt by Holdings, such the Borrower or any of its Subsidiaries at or below par, in which case the amount on and as of the date of the incurrence voluntary prepayments of such Incremental Term Loans or Permitted Incremental CommitmentsEquivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par), would not cause in each case, only to the Consolidated First Lien Net Leverage Ratio extent such Incremental Term Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (determined on a Pro Forma BasisA)(1) above, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established voluntary permanent commitment reductions in respect of Incremental Revolving Loan Commitments or Permitted Incremental Equivalent Debt consisting of revolving loan commitments credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred under Section 7.03(r)(iin reliance on clause (A)(1) are fully drawnabove, (y) without giving effect to voluntary prepayments, redemption or repurchase of Second Lien Incremental Usage Amount Debt (including purchases of Second Lien Incremental Usage Amount Debt by Holdings, the Borrower or any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(Bits Subsidiaries) and (z) excluding voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the cash proceeds prepayment, redemption or repurchase of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) incurred in reliance on clause (A)(1) above or any Second Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities); provided, that for the avoidance of doubt, this clause (A) shall not give credit to any prepayment of Closing Date Term Loans with the proceeds of, or by the conversion into, Term B Loans) to exceed 3.00 to 1.00 and , plus
(B) (x) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any Facility, an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as portion of the date Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (y) in the case of incurrence any Incremental Loans or Incremental Commitments that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Commitment or Loan, plus
(net C) solely to the extent not in duplication of Indebtedness incurred pursuant to prepayments, redemptions, repurchases or permanent commitment reductions described in Section 7.03(r)(i)(B2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or Section 7.03(r)(ii)(B)repurchases of Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (it being understood including purchases of Term Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries), (y) voluntary permanent commitment reductions in respect of Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that Indebtedness incurred under is a revolving credit facility), in the case of this clause (B) shall be available at all times and z), so long as such prepayment, redemption or repurchase was not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations previously included in clause (iiix) above; other than, in each case under clauses (Ax) with respect and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities) provided, that for the avoidance of doubt, this clause (C) shall not give credit to any Incremental Commitments, assuming a borrowing prepayment of the maximum amount of Closing Date Term Loans available thereunder and (B) to the extent with the proceeds thereof are used to repay Indebtednessof, pro forma effect shall be given to such repayment or by the conversion into, Term B Loans, plus
(D) an unlimited amount, so long as in the case of Indebtedness.this clause (D) only,
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the applicable date (which shall be no earlier than the date of such Incremental Amendment Amendment) specified therein (the “Incremental Facility Closing Amendment Date”) of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V conditions of this Agreement Section 2.2 shall be true and correct in satisfied (it being understood that all material respects (or, in the case of any representation and warranty that is qualified as references to “materiality,” “Material Adverse Effectthe date of such Credit Extension” or similar languagelanguage in such Section 2.2 shall be deemed to refer to the Incremental Amendment Date); provided, that, such Incremental Amendment may include a waiver by the Incremental Lenders party thereto of the condition set forth in Section 2.2(c) and, in all respects) on and as connection with any Incremental Commitment, the primary purpose of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred is to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (eachAcquisition, a “Limited Condition Transaction”), waiver in full or in part of the conditions set forth in clauses (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accuratea) and (2b) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or any Event of Default under Section 8.01(a7.1(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loansof Section 2.2;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 1.12(d)(iii)) and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 1.12(d)(iii)); provided that the aggregate amount of all Revolving Commitment Increases consummated under this Section 1.12 shall not exceed $100,000,000;
(iii) solely in the aggregate amount case of the making of Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of Loans, after giving Pro Forma Effect to both (A) an unlimited amount the making of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of under such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 Amendment and (B) an additional amount equal to any Specified Transactions consummated in connection therewith, the Asset Coverage Ratio for the most recently ended Test Period shall be greater than the greater of $35,000,000 (x) 1.50:1.00 and 50.0% of LTM EBITDA determined (y) the ratio as of set forth in Section 6.1 hereof for the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)most recently ended Test Period; and
(iv) [reserved];
(v) for purposes to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of the calculations in clause (iii) above, (A) customary legal opinions, board resolutions and officers’ certificates (including solvency certificates) consistent with respect those delivered on the Closing Date (conformed as appropriate) other than changes to any Incremental Commitmentssuch legal opinions resulting from a change in law, assuming a borrowing change in fact or change to counsel’s form of opinion reasonably satisfactory to the maximum amount of Loans available thereunder Administrative Agent, and (B) reaffirmation agreements and/or such amendments to the extent Collateral Documents as may be reasonably requested by the proceeds thereof Administrative Agent in order to ensure that such Incremental Lenders are used to repay Indebtedness, pro forma effect shall be given to such repayment provided with the benefit of Indebtednessthe applicable Loan Documents.
Appears in 1 contract
Samples: Credit Agreement (SelectQuote, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Default or Event of Default shall exist after giving effect to such Incremental Commitments, and the representations and warranties in Article V of this Agreement shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including waiver or non-requirement of (1) the representations and warranties hereunder shall be made, but only the (other than customary “specified” representations and warranties shall be required to be accuratewarranties) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(Aiii)(B) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansCommitments;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Amendment No. 45 Effective Date shall not exceed the sum of (A) an unlimited amount equal to $60,000,00035,000,000 (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(A) or (ii)(A)); provided that no more than $25,000,000amount may be borrowed in reliance on this clause (A) (and Section 7.03(r)(i)(A) or (ii)(A)) until the first date following the delivery pursuant to Section 6.01(b) of financial statements for the fiscal quarter ending June 30, 2020 on which the Consolidated First Lien Net Leverage Ratio is less than or equal to 4.00 to 1.00 plus (B) up to an additional amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount as on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) drawn and (z) excluding the cash proceeds of (1x) any borrowing under any such Incremental Revolving Loan Commitments, and (2y) any Incremental Term Loans) to exceed 3.00 to 1.00 Loans and (Bz) an additional amount equal any other Indebtedness that is incurred substantially concurrently therewith) is no more than 4.00 to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)1.00; and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and thereunder, (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of IndebtednessIndebtedness and (C) Indebtedness incurred under clause (iii)(A) above shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (iii)(B) or otherwise.
Appears in 1 contract
Samples: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Term Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) subject to Section 1.09(f), no Default or Event of Default shall exist or would exist after giving effect to such Incremental Term Commitments;
(ii) subject to Section 1.09(f), and the representations and warranties of each Loan Party set forth in Article V of this Agreement IV and in each other Loan Document shall be true and correct in all material respects (oron and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in the which case they shall be true and correct in all material respects as of such earlier date; provided that
(i) any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates and (or in all respects, as applicableii) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (the representation and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted warranty under Section 7.02(o4.05(b), (s) or (t) that, in any such case, is not conditioned a Material Adverse Effect that 91 previously existed but that has ceased to exist on the availability of financing (each, a “Limited Condition Transaction”), (x) date that such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations representation and warranties hereunder shall be warranty is being made, but only the customary “specified” representations shall not result in such representation and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loanswarranty being untrue;
(iiiii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall (provided that such amount may be in an aggregate principal amount that is not less than $5,000,000 and shall be 25,000,000 if such amount represents all remaining availability under the limit set forth in an increment of $1,000,000clause (iv) below);
(iiiiv) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of Available Incremental Amount; and
(A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B)extent reasonably requested by the Administrative Agent, Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds receipt by the Administrative Agent of (1) any borrowing under any customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) (other than changes to such Incremental Revolving Loan Commitmentslegal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and (2) any reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to Loans are provided with the greater of $35,000,000 and 50.0% of LTM EBITDA determined as benefit of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testapplicable Loan Documents, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent provided in the proceeds thereof are used to repay Indebtednessapplicable Incremental Amendment, pro forma effect shall be given to such repayment of Indebtednessother conditions as the Borrowers and the Lenders providing such Incremental Term Commitments may agree.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental CommitmentsCommitments (provided that, with respect to any Incremental Amendment in connection with a Limited Condition Transaction, (1) if an LCT Election is made, no Event of Default shall have occurred and be continuing on the LCT Test Date, and (2) upon the consummation of such Limited Condition Transaction, no Event of Default under Section 8.01(1) or Section 8.01(6) shall exist, in each case, after giving effect to such Incremental Commitments) and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date and any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided, that in connection with a Limited Condition Transaction, the conditions in clause (or in all respects, as applicabley) as shall only be required to the extent requested by non-Affiliated Lenders providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be 5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree or if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be 5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree or if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the incurrence of any Incremental Commitment shall be subject to the terms of the AAL, including (x) any Incremental Term Facility shall be bifurcated into separate Classes of First Out Term Loans (as defined in the AAL) and Last Out Term Loans (as defined in the AAL) pursuant to the terms of the AAL and (y) Incremental Revolving Commitments shall be provided by the AAL First Out Holders on a pro rata basis (provided that if existing AAL First Out Holders decline to provide such Incremental Revolving Commitments, such Incremental Revolving Commitments may instead be provided by the AAL Last Out Holders); and
(d) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount currently available under clauses (A) an unlimited amount through (C) below, the “Available Incremental Amount”):
(A) the sum of:
(1) the greater of (i) $27.5 million and (ii) 75.0% of Consolidated EBITDA of the Borrower and the Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) (the amounts under this clause (4)(d)(A)(1), the “Free and Clear Incremental Amount”); plus
(2) the aggregate principal amount, without duplication, of (x) voluntary prepayments, redemptions or repurchases of Closing Date Term Loans, Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long asEquivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Closing Date Term Loans, such amount on and as of the date of the incurrence of such Incremental Term Loans or such Permitted Incremental CommitmentsEquivalent Debt by Holdings, would the Borrower or any of its Subsidiaries at or below par, but limited to the amount of cash actually paid by Holdings, the Borrower or such Subsidiary), in each case secured on a pari passu basis with the Obligations (without regard to control of remedies) and, in the case of any Incremental Term Loans or Permitted Incremental Equivalent Debt, incurred in reliance on the Free and Clear Incremental Amount and (y) voluntary prepayments (accompanied by corresponding permanent commitment reductions) in respect of the Closing Date Revolving Facility, Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case, secured on a pari passu basis with the Obligations (without regard to control of remedies) and, in the case of any Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, incurred in reliance on the Free and Clear Incremental Amount (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (2) shall not cause have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness) (the Consolidated amounts under this clause (4)(d)(A), the “Non-Ratio Based Incremental Amount”), plus
(B) [reserved],
(C) an unlimited amount, so long as in the case of this clause (C) only (the “Ratio Based Incremental Amount”),
(1) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), the First Lien Net Leverage Ratio (determined for the Test Period most recently ended calculated on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without basis after giving effect to any concurrent such incurrence does not exceed 5.50 to 1.00 (including in connection with a Permitted Acquisition or other Investment permitted hereunder) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Term Facility or Incremental Revolving Facility then proposed to be incurred),
(2) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 6.50 to 1.00 (including in connection with a Permitted Acquisition or other Investment permitted hereunder) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Term Facility or Incremental Revolving Facility then proposed to be incurred), or
(3) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured, the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 6.50 to 1.00 (including in connection with a Permitted Acquisition or other Investment permitted hereunder) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Term Facility or Incremental Revolving Facility then proposed to be incurred). The Borrower may elect to use the Ratio Based Incremental Amount regardless of whether the Borrower has capacity under the Non-Ratio Based Incremental Amount. Further, the Borrower may elect to use the Ratio Based Incremental Amount prior to using the Non-Ratio Based Incremental Amount, and if both the Ratio Based Incremental Amount and the Non- Ratio Based Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use the Ratio Based Incremental Amount. In addition, any Indebtedness made originally designated as incurred pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Non-Ratio Based Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined Amount shall be automatically reclassified as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available the Ratio Based Incremental Amount at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of such time as the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming Borrower would meet the applicable leverage-based incurrence test on a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtednessbasis.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Term Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) subject to Section 1.09(f), no Default or Event of Default shall exist or would exist after giving effect to such Incremental Term Commitments;
(ii) subject to Section 1.09(f), and the representations and warranties of each Loan Party set forth in Article V of this Agreement IV and in each other Loan Document shall be true and correct in all material respects (oron and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in the which case they shall be true and correct in all material respects as of such earlier date; provided that (i) any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates and (or in all respects, as applicableii) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (the representation and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted warranty under Section 7.02(o4.05(b), (s) or (t) that, in any such case, is not conditioned a Material Adverse Effect that previously existed but that has ceased to exist on the availability of financing (each, a “Limited Condition Transaction”), (x) date that such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations representation and warranties hereunder shall be warranty is being made, but only the customary “specified” representations shall not result in such representation and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loanswarranty being untrue;
(iiiii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 25,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall (provided that such amount may be in an aggregate principal amount that is not less than $5,000,000 and shall be 25,000,000 if such amount represents all remaining availability under the limit set forth in an increment of $1,000,000clause (iv) below);
(iiiiv) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of Available Incremental Amount; and
(A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B)extent reasonably requested by the Administrative Agent, Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds receipt by the Administrative Agent of (1) any borrowing under any customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (conformed as appropriate) (other than changes to such Incremental Revolving Loan Commitmentslegal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and (2) any reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to Loans are provided with the greater of $35,000,000 and 50.0% of LTM EBITDA determined as benefit of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio testapplicable Loan Documents, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent provided in the proceeds thereof are used to repay Indebtednessapplicable Incremental Amendment, pro forma effect shall be given to such repayment of Indebtednessother conditions as the Borrowers and the Lenders providing such Incremental Term Commitments may agree.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, no Default or Event of Default under Sections 8.01(a), 8.01(f) or 8.01(g) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the representations conditions of Sections 4.02(i) and warranties in Article V of this Agreement 4.02(ii) shall be true and correct in satisfied (it being understood that all material respects (or, in the case of any representation and warranty that is qualified as references to “materiality,” “Material Adverse Effectthe date of such Loan” or similar language, language in all respects) on and as of such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that, if the incurrence proceeds of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of the respective date or for the respective period, as the case may be); provided that in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred are being used to finance a Permitted Acquisition or other Investment permitted under hereunder, the reference in Section 7.02(o), (s4.02(i) or (t) that, in any such case, is not conditioned on to the availability accuracy of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be madeshall, but only to the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise extent agreed by the Incremental Term Lenders providing such Incremental Term Commitments Lender, refer to customary “specified representations” and Incremental Term Loans“specified acquisition representations”;
(iiiii) [reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,0001,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(v));
(iiiv) the aggregate amount of the Incremental Term Loans incurred after the First Amendment Effective Date (when aggregated with the Initial Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date with amounts incurred at or prior to such time pursuant to Section 7.03(q)) shall not exceed the sum greater of (A) $300,000,000 and (B) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long asas the Incremental Loan-to-Value Ratio, such amount on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds Basis as of the last day of the most recently ended Test Period, as if any Incremental LoanLoans available under such Incremental Commitments had been outstanding on the last day of such period, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnand, (y) in each case, without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding netting the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan CommitmentsLoans, and (2) any Incremental Term Loans) to does not exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise)5.0%; and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (Bvi) to the extent reasonably requested by the proceeds thereof are used to repay IndebtednessLender, pro forma effect the Lender shall be given have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ClosingFirst Amendment Effective Date other than changes to such repayment legal opinion resulting from a change in law, change in fact or change to counsel’s form of Indebtednessopinion reasonably satisfactory to the Lender.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to Holdings or any Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrowers contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” ”, “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the condition in this clause (y) shall only be required to the extent requested by the Persons providing the applicable Incremental Term Loans and Incremental Term Commitments or in all respects, as applicable) as of the respective date or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); be (provided that further that, in the case of Incremental Term Commitments (and for the avoidance of doubt, not in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such caseacquisition or other Investment, is not conditioned on the availability of financing condition contained in this clause (each, a “Limited Condition Transaction”), (xy) such requirement shall be subject with respect to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties Specified Representations shall be required to be accurate) and (2) waiver whether or non-requirement of the absence of a Default or Event of Default (other than not requested by such Persons, unless waived in accordance with respect to a Default or Event of Default under Section 8.01(a) or (f10.01))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not at any time, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (A) an unlimited (1) the Incremental Starter Amount in effect at such time plus (2) the aggregate amount of (x) voluntary prepayments of Term Loans, Incremental Term Loans and/or and Permitted Incremental Revolving Loan Commitments so long as, such amount on and as Equivalent Debt (other than Permitted Incremental Equivalent Debt consisting of revolving credit facilities) (including purchases of the date Loans or Permitted Incremental Equivalent Debt by Holdings, any Borrower or any Subsidiary at or below par, in which case the amount of voluntary prepayments of such Loans or Permitted Equivalent Debt shall be deemed not to exceed the incurrence actual purchase price of such Loans or Permitted Equivalent Debt below par), in each case of such Incremental Term Loans or Permitted Incremental Equivalent Debt, to the extent it was incurred in reliance on clause (A)(1) above and secured by Liens on the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement and (y) permanent commitment reductions in respect of Revolving Commitments, would not cause Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case of such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt, to the Consolidated extent it was incurred in reliance on clause (A)(1) above and secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement and other than, in each case under clauses (x) and (y), from proceeds of long-term Indebtedness (other than revolving Indebtedness), plus (B) an unlimited amount, so long as in the case of this clause (B) only, (x) in the case of Incremental Loans or Incremental Revolving Commitments secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), the First Lien Net Leverage Ratio (determined for the Test Period most recently ended calculated on a Pro Forma Basis, including the pro forma basis after giving effect to any such incurrence, does not exceed 4.00 to 1.00 (in the case of any Specified Transaction an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnincurred), (y) without in the case of Incremental Loans or Incremental Revolving Commitments secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any concurrent such incurrence, does not exceed 6.50 to 1.00 (in the case of an incurrence of any Indebtedness made pursuant Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(Bbe incurred) and (z) excluding in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured, the Total Net Leverage Ratio for the Test Period most recently ended, calculated on a pro forma basis after giving effect to any such incurrence, does not exceed 6.50 to 1.00 (in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Total Net Leverage Ratio without netting the cash proceeds of (1) any borrowing under any from such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) Loans then proposed to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)be incurred) (it being understood provided, however, that Indebtedness if amounts incurred under this clause (B) are incurred concurrently with the incurrence of Incremental Loans or Incremental Commitments and/or Permitted Incremental Equivalent Debt (in each case, including any unused commitments obtained) in reliance on clause (A) above, the First Lien Net Leverage Ratio, the Secured Net Leverage Ratio or the Total Net Leverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clause (A); provided, further, for the avoidance of doubt, to the extent the proceeds of any Incremental Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments) (the amount available at all times under clauses (A) and not subject (B), the “Available Incremental Amount”). The Lead Borrower may elect to any ratio test, use clause (B) of the Available Incremental Amount regardless of whether incurred simultaneously with amounts the Borrowers have capacity under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in Available Incremental Amount. Further, the Lead Borrower may elect to use clause (iiiB) above, of the Available Incremental Amount prior to using clause (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder Available Incremental Amount, and if both clause (B) and clause (A) of the Available Incremental Amount are available and the Lead Borrower does not make an election, then the Lead Borrower will be deemed to have elected to use clause (B) of the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of IndebtednessAvailable Incremental Amount.
Appears in 1 contract
Samples: Credit Agreement (Chobani Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement that is not conditioned upon obtaining third-party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects (or in all respects, as applicable) as of the on such respective date or for the respective period, as the case may bedates); provided that, in connection with an acquisition or other Investment permitted hereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (provided, further, that, in the case of Incremental Term Commitments (and for any such acquisition or other Investment with a purchase price in excess of $20.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an this Section 2.14(4)); and
(c) the aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000;
(iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (A) an unlimited maximum amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, Indebtedness that can be incurred such amount on and as of that the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined for the Test Period most recently ended calculated on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without basis after giving effect to any concurrent such incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to does not exceed 3.00 2.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise“Available Incremental Amount”); and
(iv) [reserved];
(v) provided that for purposes the avoidance of the calculations in clause (iii) abovedoubt, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof of any Incremental Loans are used being utilized to repay IndebtednessIndebtedness (including any repayment, repurchase or refinancing of Indebtedness for which an irrevocable notice of repayment (or similar notice of repayment) has been delivered), such calculations shall give pro forma effect shall be given to such repayment of Indebtednessrepayments.
Appears in 1 contract
Samples: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date of such Incremental Amendment (the “Incremental Facility Closing Date”) or waiver of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) Other than in the case of an Incremental Amendment and an Incremental Term Loan relating to the Xxxxxxx Acquisition, immediately before and after giving effect to such Borrowing and the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing; provided, that in connection with any Incremental Commitments the primary purpose of which is to consummate a Limited Condition Transaction, the condition under this clause (i) shall be that (x) no Default or Event of Default shall exist have occurred at the Limited Conditionality Test Date and (y) no Event of Default pursuant to Section 8.01(a), (b), (g) or (h) has occurred and is continuing after giving effect to such Incremental Facility; provided that the conditions in this clause (i) (other than the condition referenced in the proviso thereto in respect of 8.01(a), (b), (g) or (h) unless waived by the Required Lenders in accordance with Section 10.02) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Loan Commitments or Incremental Revolving Credit Loans and Incremental Revolving Credit Commitments, as the case may be;
(ii) Other than in the case of an Incremental Term Loan incurred to consummate the Xxxxxxx Acquisition, immediately before and after giving effect to such Borrowing and the application of the proceeds thereof, all representations and warranties of each Loan Party set forth in Article V of this Agreement the Loan Documents shall be true and correct in all material respects (orother than those representations and warranties that are expressly qualified by a Material Adverse Effect or other materiality, in the which case such representations and warranties shall be true and correct in all respects after giving effect to such qualification and other than those representations and warranties that are expressly made as of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar languagean earlier specified date, in all respects) on which case such representations and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period shall be required only to be true and correct in all material respects as of such earlier specified date); provided, however, that (or A) in all respectsconnection with any Incremental Facility the primary purpose of which is to consummate a Limited Condition Transaction, as applicablethe condition under this clause (ii) shall be that (x) such representations and warranties are true and correct to the extent required above as of the respective date Limited Conditionality Test Date and (y) the Specified Representations are true and correct in all material respects (other than those Specified Representations that are expressly qualified by Material Adverse Effect or for other materiality, in which case such Specified Representations shall be true and correct in all respects after giving effect to such qualification and other than those Specified Representations that are expressly made as of an earlier specified date, in which case such Specified Representation shall be true and correct in all material respects as of such earlier specified date) at the respective periodtime the relevant Limited Condition Transaction is consummated and the Incremental Loans are funded; provided that the conditions in this (ii) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Loan Commitments or Incremental Revolving Credit Loans and Incremental Revolving Credit Commitments, as the case may be); provided that and (B) in the case of connection with an Incremental Term Commitments Loan incurred to consummate the Xxxxxxx Acquisition, the condition under this clause (ii) shall be that the Specified Xxxxxxx Representations are true and for correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such Specified Xxxxxxx Representations shall be true and correct in all respects after giving effect to such qualification and other than those Specified Xxxxxxx Representations that are expressly made as of an earlier specified date, in which case such Specified Xxxxxxx Representation shall be true and correct in all material respects as of such earlier specified date) at the avoidance of doubt, not in time the case of Incremental Revolving Loan Commitments) Xxxxxxx Acquisition is consummated and the Incremental Term Loans incurred to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
(ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000connection therewith are funded;
(iii) the aggregate each Incremental Commitment shall be in a minimum amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum $5,000,000 or a whole multiple of (A) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, $100,000 in excess hereof; provided that such amount on and as of may be less than $5,000,000 if such amount represents all remaining availability under the date of the incurrence of such Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (applicable limit set forth in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B2.17(a), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and;
(iv) [reserved];
(v) for purposes of [reserved]; and
(vi) the calculations in clause (iii) above, (A) with respect Borrower shall deliver or cause to be delivered any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) customary amendments to the extent Loan Documents or other documents reasonably requested by the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to applicable Agent or any Additional Lender in connection with any such repayment of Indebtednesstransaction.
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Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the incurrence of Indebtedness in respect of Other Notes, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction (or waiver) on the date of such Incremental Amendment (or, in the case of Other Commitments, Other Term Loans and Other Notes, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans or Other Notes, as applicable, in each case, subject to Section 1.11(g)) (the “Incremental Facility Closing Date”) of each of the following conditions:
: (i) (x) no Default or Event of Default exists or shall exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or Other Notes, as applicable; 103 provided, that in the case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, no Event of Default shall exist on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Limited Condition Transaction and no Event of Default under Section 8.01(a) or 8.01(f) shall exist on such Incremental Facility Closing Date and (y) the representations and warranties of the Loan Parties contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects (or, in the case of any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments Amendment (although any provided that, to the extent that such representations or and warranties which expressly relate specifically refer to a given date or period an earlier date, they shall be required only to be true and correct in all material respects (or in all respects, as applicable) as of such earlier date); provided that the respective date conditions in clause (y) shall only be required to the extent requested by the Persons providing more than 50.0% of the applicable Incremental Commitments, Other Commitments, Other Term Loans or for the respective periodOther Notes, as the case may be); provided provided, further, that in the case of Incremental Term Commitments (and for the avoidance of doubtCommitments, not in the case of Incremental Revolving Loan Other Commitments) and Incremental , Other Term Loans or Other Notes incurred to finance in connection with a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), if required, only certain customary specified representations (xconformed as necessary for such acquisition, investment or other transaction) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations true and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or Event of Default under Section 8.01(a) or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth correct in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case if otherwise agreed by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term Loans;
all material respects; (ii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below) and each Incremental Revolving Loan Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 500,000 and shall be in an increment of $1,000,000;
500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (iii) below); and (iii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date Other Notes shall not exceed the sum of (A) [reserved], plus (B) an amount equal to the sum, without duplication, of all (i) voluntary prepayments and optional redemptions of Term Loans made pursuant to Section 2.05(a) or Section 10.07(l)(x) or mandatory assignments pursuant to Section 3.07 or of other pari passu Indebtedness incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” and (ii) voluntary commitment reductions and voluntary prepayments of the Loans under the Revolving Credit Facility or any other pari passu revolving facility incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” to the extent accompanied by a permanent commitment reduction, (in each case, including any substantially concurrent prepayment, redemption, reduction, termination, buy-back (the amount of any debt buy backs limited to the cash payment actually made in respect thereof) or purchase, other than to the extent funded with (A) proceeds of long term Indebtedness (other than revolving Indebtedness or intercompany Indebtedness) or (B) proceeds of Indebtedness incurred pursuant to clause (A) above, Section 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” plus (C) an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, in the case of this clause (C) only, such amount at such time could be incurred without causing (x) in the case of Indebtedness secured by Liens on and as of the date of Collateral that rank pari passu with the incurrence of such Incremental Liens securing the Initial Term Loans or Incremental CommitmentsLoans, would not cause the Consolidated First Lien Senior Secured Net Leverage Ratio (determined calculated on a Pro Forma Basis, including the pro forma effect of any Specified Transaction ) to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments incurred under Section 7.03(r)(i) are fully drawnexceed 4.50:1.00, (y) without in the case of Indebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, and (z) in the case of unsecured Indebtedness, the Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, in each case, after giving effect to any concurrent incurrence of any Indebtedness made pursuant acquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the following Section 2.14(d)(iii)(Bprepayment of Indebtedness in connection therewith), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, and (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) assuming for purposes of this calculation that (i) the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum full committed amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.any Additional Revolving Commitments
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Samples: Credit Agreement (Redwire Corp)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date of such Incremental Amendment thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V of this Agreement or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (orprovided that, to the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in the case all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language, in all respects) on and as of the date of the incurrence of such Incremental Commitments (although any representations or warranties which expressly relate to a given date or period language shall be required only to be true and correct (after giving effect to any qualification therein) in all material respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (or x) and in all respects, as applicableclause (y) as shall only be required to the extent requested by the Persons providing more than 50% of the respective date applicable Incremental Term Loans and Incremental Term Commitments or for the respective periodIncremental Revolving Loans and Incremental Revolving Commitments, as the case may be); provided that be (provided, further, that, in the case of Incremental Term Commitments (and for an acquisition or other Investment with a purchase price in excess of $100.0 million, the avoidance of doubt, not conditions contained in the case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred proviso to finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), clause (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to a Default or no Event of Default under Section 8.01(a8.01(1) or (f))or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (iii)(A) below may, at the Borrower’s election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereofwith respect to Specified Representations, in each case if otherwise agreed case, shall be required whether or not requested by the Incremental Term Lenders providing such Incremental Term Commitments and Incremental Term LoansPersons, unless waived in accordance with Section 10.01);
(iib) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000 this Section 2.14(4)) and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall 5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in an increment clause (c) of $1,000,000Section 2.14(4));
(iiic) the aggregate principal amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following shall not, together with the Delayed Draw Term A Commitment Expiration Date shall not aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of of: (A) an unlimited amount (1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount (for the avoidance of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long asdoubt, such amount on and it being agreed that as of the date of the incurrence of such Third Amendment Effective Date, no Incremental Term Loans or Incremental Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the Incremental Loan, and computed (x) assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or revolving loan commitments have been incurred under Section 7.03(r)(i) are fully drawn, (y) without giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B) and (z) excluding the cash proceeds of this clause (1)) any borrowing under any such Incremental Revolving Loan Commitments, and plus (2) any Incremental Term Loans) to exceed 3.00 to 1.00 and (B) an additional amount equal to the greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or otherwise); and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness.the
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