Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition; (iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans; (iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence); (v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and (vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 6 contracts
Sources: Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings Inc.), Credit Agreement (Hilton Worldwide Holdings 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 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, no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments; provided that, or with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition permitted by this Agreement, the requirement pursuant to this clause (yd)(i) if otherwise, shall be that no Event of Default under Section 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Credit Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates; provided further that, with respect to any Incremental Amendment the covenant set forth primary purpose of which is to finance an acquisition permitted by this Agreement, only the Specified Representations (and not any other representations or warranties in Section 7.11 if such covenant is then Article V or any of the Credit Documents or otherwise) shall be required to be true and correct in effect, determined all material respects on a Pro Forma Basis and as of the Incremental Facility Closing Date Date, except to the extent such representations and the last day of the most recently ended Test Periodwarranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (x) with respect after giving effect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (yqualification therein) without netting the cash proceeds of any in all respects on such Incremental Loansrespective dates;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than the Dollar Equivalent of $20,000,000 10,000,000 and shall be in an a Dollar Equivalent increment of $1,000,000 (provided that such amount may be less than the Dollar Equivalent of $20,000,000 10,000,000 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 the Dollar Equivalent of $5,000,000 10,000,000 and shall be in an a Dollar Equivalent increment of $1,000,000 (provided that such amount may be less than the Dollar Equivalent of $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);; and
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) the Dollar Equivalent of the greater of (x) $1,500,000,000 less 750 million and (y) 25% of Consolidated EBITDA in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus and (B) all voluntary prepayments at the option of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments Parent Borrower, an unlimited amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and or Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated Senior Secured First Lien Net Leverage Ratio, determined on a Pro Forma Basis Ratio is no more than 4.00 to 1.00 as of the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableended, as if after giving effect to any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) case, with respect to any Incremental Revolving Credit CommitmentCommitment proposed to be incurred at such time, assuming a borrowing of the maximum amount of Loans available thereunder, thereunder (it being understood that: (x) any Incremental Facility may be incurred under clause (B) regardless of whether there is capacity under clause (A) and (y) without netting if such Incremental Facility may be incurred under both clauses (A) and (B) and the cash Parent Borrower does not make an election, the applicable Borrower shall be deemed to have incurred such Incremental Facility under clause (B)); provided, however, that for the avoidance of doubt, to the extent the proceeds of any such Incremental LoansIndebtedness are intended to be applied to finance a Limited Condition Transaction for which a LCT Election has been made, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent Senior Secured First Lien Net Leverage Ratio shall agreebe tested in accordance with Section 1.08(f).
Appears in 5 contracts
Sources: Fifth Amended and Restated Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Iqvia Holdings 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 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections 4.02(i) and (iiSection 4.02(i) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations; provided, further, that the reference to “Material Adverse Effect” in Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent First Lien Debt, all voluntary commitment reductions prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.85 to 1.00, (2) if such Indebtedness is secured by the Collateral on a junior Lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing the most recently ended period of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansfour consecutive fiscal quarters for which financial statements are internally available, does not exceed 3.75 6.25 to 1.001.00 and (3) if such Indebtedness is unsecured (or not secured by all or any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 6.25 to 1.00 or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is not less than 2.00 to 1.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and Section 7.03(w) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn, (b) the cash proceeds of any Incremental Facility shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded.
Appears in 4 contracts
Sources: Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware), Credit Agreement (Alight, Inc. / Delaware)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments; provided that, or with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition permitted by this Agreement, the requirement pursuant to this clause (yd)(i) if otherwise, shall be that no Event of Default under Section 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Credit Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates; provided further that, with respect to any Incremental Amendment the covenant set forth primary purpose of which is to finance an acquisition permitted by this Agreement, only the Specified Representations (and not any other representations or warranties in Section 7.11 if such covenant is then Article V or any of the Credit Documents or otherwise) shall be required to be true and correct in effect, determined all material respects on a Pro Forma Basis and as of the Incremental Facility Closing Date Date, except to the extent such representations and the last day of the most recently ended Test Periodwarranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case earlier date; provided that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct (x) with respect after giving effect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (yqualification therein) without netting the cash proceeds of any in all respects on such Incremental Loansrespective dates;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than the Dollar Equivalent of $20,000,000 10,000,000 and shall be in an a Dollar Equivalent increment of $1,000,000 (provided that such amount may be less than the Dollar Equivalent of $20,000,000 10,000,000 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 the Dollar Equivalent of $5,000,000 10,000,000 and shall be in an a Dollar Equivalent increment of $1,000,000 (provided that such amount may be less than the Dollar Equivalent of $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);; and
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) the Dollar Equivalent of $1,500,000,000 less 300,000,000 in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments at the option of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior the Parent Borrower, up to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments an amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and or Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated Senior Secured First Lien Net Leverage Ratio, determined on a Pro Forma Basis Ratio is no more than 4.00 to 1.00 as of the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableended, as if after giving effect to any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) case, with respect to any Incremental Revolving Credit CommitmentCommitment proposed to be incurred at such time, assuming a borrowing of the maximum amount of Loans available thereunder, thereunder (it being understood that: (x) any Incremental Facility may be incurred under clause (B) regardless of whether there is capacity under clause (A) and (y) without netting if such Incremental Facility may be incurred under both clauses (A) and (B) and the cash Parent Borrower does not make an election, the Parent Borrower shall be deemed to have incurred such Incremental Facility under clause (B)); provided, however, that for the avoidance of doubt, to the extent the proceeds of any such Incremental LoansIndebtedness are intended to be applied to finance a Limited Condition Transaction for which a LCT Election has been made, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent Senior Secured First Lien Net Leverage Ratio shall agreebe tested in accordance with Section 1.08(f).
Appears in 4 contracts
Sources: Credit Agreement (Iqvia Holdings Inc.), Credit Agreement (Quintiles IMS Holdings, Inc.), Credit Agreement (Quintiles IMS Holdings, 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being intended to be used in whole or in part to finance a Permitted Acquisitionan acquisition, Investment or irrevocable repayment, repurchase or redemption of Indebtedness, no Event of Specified Default under Sections 8.01(a) or (f) 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, the conditions of Sections condition set forth in Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used in whole or in part to finance a Permitted Acquisition(A) an acquisition or Investment, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (as conformed for such transactions in lieu of the Transactions) and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisitionacquisition or Investment or (B) an irrevocable repayment, repurchase or redemption of Indebtedness, there shall be no requirement to satisfy the condition set forth in Section 4.02(i);
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Loans, Incremental Revolving Credit Commitments and Incremental Equivalent Debt shall not exceed the sum of (A) the greater of (1) $1,500,000,000 less 1,080,000,000 and (2) an amount equal to 100% of Consolidated EBITDA of the aggregate principal amount Parent Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a Pro Forma Basis), in each case determined as of Indebtedness incurred the date of incurrence; plus (B) (1) all voluntary prepayments, repurchases, redemptions and other retirements of any Term Loans, any Credit Agreement Refinancing Indebtedness, any Incremental Equivalent First Lien Debt and any Permitted Refinancings of any of the foregoing (including, in the case of Term Loans (x) prepaid pursuant to Section 7.03(q2.05(a)(v) at or prior (y) purchased pursuant to such time open-market purchasers in accordance with Section 10.07(m)) plus (B2) all voluntary prepayments of Term any Revolving Credit Loans and accompanied by corresponding voluntary permanent commitment reductions of Revolving Credit Commitments or Incremental Revolving Credit Commitments, any Credit Agreement Refinancing Indebtedness in respect thereof and any Permitted Refinancings of any of the foregoing, as the case may be, in each case, prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments prepayments, repurchases, redemptions or other retirements of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, any Indebtedness described in this clause (B) to the extent such Incremental Term Loans and Incremental funded with a contemporaneous incurrence of long-term funded Indebtedness (other than, for the avoidance of doubt, Indebtedness consisting of Revolving Credit Commitments were obtained pursuant to clause (C) belowLoans or any other revolving credit loans)), plus (C) additional unlimited amounts (including at any time prior to, or in combination with, the utilization of amounts under clauses (A) and (B) above) so long as as, in the case of this clause (C) only, (1) in the case of Incremental Loans secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the First Lien Obligations under this Agreement, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the Test Period most recently ended period ended, does not exceed 4.90 to 1.00, (2) in the case of four consecutive fiscal quarters for which financial statements are internally availableIncremental Loans secured by the Collateral on a junior lien basis with the Liens on the Collateral securing the First Lien Obligations under this Agreement, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansTest Period most recently ended, does not exceed 3.75 5.75:1.00, and (3) in the case of unsecured Incremental Loans, either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the Test Period most recently ended, does not exceed 6.00:1.00 or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the Test Period most recently ended, is not less than 2.00:1.00, in each case, after giving pro forma effect to 1.00any acquisition, investment or other specified transaction consummated in connection therewith and all other permitted pro forma adjustments (the amounts under clauses (A) and (B), collectively, the “Free and Clear Incremental Amount” and the amounts under clause (C), the “Incurrence-Based Incremental Amount,” and together with the Free and Clear Incremental Amount, collectively, the “Incremental Cap Amount”); provided that the Parent Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof in accordance with Section 1.02(h) (and, absent such election, shall be deemed to have used the Incurrence-Based Incremental Amount), and any portion of any Incremental Commitments, Incremental Loans and Incremental Equivalent Debt incurred in reliance on the Free and Clear Incremental Amount shall be reclassified in accordance with Section 1.02(h); and
(vi) such other conditions as the Parent Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. Notwithstanding anything contained herein to the contrary, any condition to the effectiveness of any Incremental Amendment and the funding of any Incremental Commitments (but not, for the avoidance of doubt, any required terms set forth in clause (e) of this Section 2.14), may be omitted or waived solely by the Required Facility Lenders in respect of such Incremental Commitments; provided, that any condition as to the absence of a continuing Specified Default, any condition as to the accuracy of the Specified Representations in connection with an acquisition or an Investment (as conformed for the applicable transactions) and compliance with the Incremental Cap may not be omitted or waived without the consent of the Required Lenders. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Credit Commitments then being established are fully drawn, (b) the cash proceeds of any Incremental Commitments shall be excluded from “net” Indebtedness in determining whether such Incremental Commitments can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Credit Commitments) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded.
Appears in 4 contracts
Sources: Credit Agreement (PF2 SpinCo, Inc.), Credit Agreement (PF2 SpinCo LLC), Credit Agreement (Change Healthcare 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 thereof of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used subject to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwiseSection 1.08, 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition[reserved];
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 (and need not be in an increment of $1,000,000) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (v) below) and each Incremental Revolving Credit 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 (provided that such amount may be less than $5,000,000 (and need not be in an increment of $1,000,000) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (v) below);
(iv) [reserved]; and
(v) at the time of and after giving effect to the effectiveness of any proposed Incremental Term Loans or Incremental Revolving Loan Commitments, the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Loan Commitments shall not exceed the sum of (A) $1,500,000,000 less an amount equal to the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Starter Basket plus (B) the amount of all prior voluntary prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent Debt, all voluntary prepayments of Term Revolving Credit Loans and accompanied by corresponding voluntary commitment permanent reductions of Commitments in respect of such Revolving Credit Commitments Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(vi) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments of Incremental Term Loans prepayments, repurchases, redemptions and voluntary commitment reductions of Incremental Revolving Credit Commitmentsother retirements, in each case other than to the extent such Incremental Term Loans and Incremental Revolving prepayments are made with the proceeds of Credit Commitments were obtained pursuant to clause Agreement Refinancing Indebtedness or other long-term funded Indebtedness (C) belowother than revolving loans), plus (C) up to an additional amounts amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as on and as of the date of the incurrence of such Incremental Term Loans or Incremental Revolving Loan Commitments on a Pro Forma Basis after giving effect to each such incurrence and/or issuance of such Indebtedness 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 any borrowing under any such Incremental Term Loans or Incremental Revolving Loan Commitments not applied promptly for the specified transaction in connection with such incurrence upon receipt thereof, (x) in the case of any Incremental Term Loans or Incremental Revolving Loan Commitments that is secured by a Lien on the Collateral on a pari passu basis with the Obligations, the Consolidated First Lien Net Leverage RatioRatio (determined on a Pro Forma Basis in accordance with Section 1.09) does not exceed 5.00:1.00, (y) in the case of any Incremental Term Loans or Incremental Revolving Loan Commitments that is secured by a Lien on the Collateral on a basis junior to the Obligations, the Consolidated Secured Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09) does not exceed 5.00:1.00 or (z) in the case of any Incremental Term Loans or Incremental Revolving Loan Commitments that is unsecured, the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09) does not exceed 6.90:1.00 (the amounts under the foregoing clauses (A) and/or (B) are herein referred to as the “Free and Clear Incremental Amount” and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence Based Incremental Amount.” The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Term Loans or Incremental Revolving Loan Commitments incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the last day end of any subsequent fiscal quarter after the most recently ended period initial incurrence of four consecutive fiscal quarters for which financial statements such Incremental Term Loans or Incremental Revolving Loan Commitments, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Loan Commitments then being established are internally availablefully drawn, as if (b) the cash proceeds of any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under Loan Commitments shall be excluded from “net” Indebtedness in determining whether such Incremental Term Loans or Incremental Revolving Loan Commitments had been outstanding on can be incurred (provided that the last day use of such period, and, proceeds thereof and any other pro forma adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in each case respect of the Revolving Credit Facility (x) with respect to and/or any Incremental Revolving Credit CommitmentLoan Commitments) prior to, assuming a borrowing or simultaneously with, the event for which the Pro Forma Compliance determination of the maximum amount of Loans available thereundersuch ratio or other test is being made, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreebe disregarded.
Appears in 4 contracts
Sources: Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.), Credit Agreement (Avantor, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) 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; provided, that, in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, the foregoing condition shall be (A) no Event of Default shall have occurred and be continuing on the date of execution of the definitive purchase agreement for such Limited Condition Acquisition and (B) no Event of Default under Section 9.01(a), (f) or (g) shall have occurred and be continuing or would exist after giving effect to such Limited Condition Acquisition and the funding of such Incremental Term Loan;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties set forth in Article VI shall refer be true and correct as and to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” extent set forth in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionSection 5.03;
(iii) the Borrower and its Restricted Subsidiaries Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating that the Loan Parties would be in compliance with the covenant financial covenants set forth in Section 7.11 if such covenant is then in effect, determined 8.11 recomputed as of the last day of the period of four (4) fiscal quarters of the Borrower most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) or 7.01(b) after giving effect to any Incremental Commitments on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term (assuming all Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on as of the last day of such fiscal quarter period); provided, that, in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, receipt of such Pro Forma Compliance Certificate may be satisfied in accordance with Section 1.03(e), at the option of the Borrower Borrower, on the applicable LCA Test Date for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLimited Condition Acquisition;
(iv) each the aggregate Incremental Commitments for any Revolving Commitment Increase, any Term Loan Increase or any other Class of Incremental Term Commitment Loan shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 (or if less, the entire remaining amount available for such institution) and shall be in an increment of $1,000,000 (provided that or such amount may be less than $20,000,000 if such amount represents all remaining availability under lesser amounts as agreed by 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 $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 the next sentenceAdministrative Agent);
(v) after giving effect to the establishment of such Incremental Commitments, the aggregate principal amount of the all Incremental Term Loans and the Incremental Revolving Credit Commitments effected pursuant to this Section 2.16 shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 450,000,000 plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts an unlimited amount so long as the Consolidated First Lien Net Leverage Ratio, determined Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if and assuming any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on are fully drawn) is less than 3.00:1.0;
(vi) receipt by the last day Administrative Agent of (A) such resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties as it may reasonably request relating to the organizational authority for the establishment of such period, and, in each case (x) with respect to Incremental Commitments and the enforceability thereof and any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunderother matters relevant thereto, and (yB) without netting such amendments to the cash proceeds of any such Incremental LoansCollateral Documents as may be reasonably requested by the Administrative Agent, does not exceed 3.75 all in form and substance reasonably satisfactory to 1.00; andthe Administrative Agent;
(vivii) such other conditions as the Borrower, each Incremental Lender providing any such Incremental Commitments Commitment and the Administrative Agent shall agree. For purposes of calculating the aggregate principal amount of all Incremental Commitments pursuant to Section 2.16(d)(v), the Borrower may elect to establish such Incremental Commitments in reliance on Section 2.16(d)(v)(A) or Section 2.16(d)(v)(B) in any order or concurrently. If in connection with the establishment of any Incremental Commitments the Borrower is able to establish such Incremental Commitments in reliance on either of Section 2.16(d)(v)(A) or Section 2.16(d)(v)(B), and the Borrower does not notify the Administrative Agent as to which section such Incremental Commitments are being established make an election as to which section such Incremental Commitments are being established, the Borrower will be deemed to have established such Incremental Commitments in reliance on Section 2.16(d)(v)(B). If the Borrower establishes Incremental Commitments in reliance on Section 2.16(d)(v)(A) concurrently with the establishment of Incremental Commitments in reliance on Section 2.16(d)(v)(B), the amount of any such Incremental Commitments established in reliance on Section 2.16(d)(v)(A) shall be disregarded for purposes of calculating the Consolidated First Lien Leverage Ratio in connection with determining the permissibility of the amount of such Incremental Commitments that may be established at such time in reliance on Section 2.16(d)(v)(B).
Appears in 3 contracts
Sources: Credit Agreement (Concentrix Corp), Credit Agreement (Synnex Corp), Credit Agreement (Concentrix 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisitionan 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 Sections 8.01(aSection 8.01(1) or (fSection 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined language shall be true and correct (after giving effect to any qualification therein) in all 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 main transaction agreement governing such Permitted Acquisition;
proviso to clause (iiix) and in clause (y) shall only be required to the Borrower and its Restricted Subsidiaries shall be in compliance with extent requested by the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as Persons holding more than 50% of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicablethe case may be (provided, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewithfurther, andthat, in each the case of any such acquisition or other Investment with a purchase price in excess of $20.0 million, the conditions contained in the proviso to clause (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing no Event of the maximum amount of Loans available thereunder, Default under Section 8.01(1) or Section 8.01(6) and in clause (y) without netting the cash proceeds of any with respect to Specified Representations, in each case, shall be required whether or not requested by such Incremental LoansPersons, unless waived in accordance with Section 10.01);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $20,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $5,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
(A) (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) plus (2) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (Ax) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all 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 commitment reductions prepayments of Revolving Credit Commitments prior such Loans or Permitted Incremental Equivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or simultaneous with Permitted Incremental Equivalent Debt below par), in the Incremental Facility Closing Date (excluding voluntary case of prepayments of Incremental Term Loans and voluntary commitment reductions of or Permitted Incremental Revolving Credit CommitmentsEquivalent Debt, only to the extent such Incremental Term Loans or Permitted Incremental Equivalent Debt was secured on a pari passu basis with the First Lien Obligations under this Agreement and incurred in reliance on clause (A)(1) above and (y) voluntary permanent commitment reductions in respect of Incremental Revolving Credit Commitments were obtained pursuant 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 pari passu basis with the First Lien Obligations under this Agreement and incurred in reliance on clause (CA)(1) below)above, plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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, andother than, in each case under clauses (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash ), from proceeds of any such Incremental Loanslong-term Indebtedness (other than revolving Indebtedness), does not exceed 3.75 to 1.00; andplus
(viB) such other conditions an unlimited amount, so long as in the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.case of this clause (B) only,
Appears in 3 contracts
Sources: Credit Agreement (Superior Industries International Inc), Credit Agreement (Superior Industries International Inc), Credit Agreement (Superior Industries International 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 thereof (the “Incremental Facility Tranche 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, no Default or Event of Default under Sections 8.01(a) exists or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, Amendment; provided that if the primary purpose of proceeds of such Incremental Term Loans is to finance a Limited Condition Transaction then the foregoing shall be limited to no Default or (y) if otherwise, no Event of Default shall have occurred exists on the date of signing the relevant definitive documentation evidencing such transaction and be continuing or would exist after giving effect to such no Specified Event of Default exists on the Incremental CommitmentsTranche Closing Date;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, either (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Credit Party set forth in Section 4 and in each other Credit Document shall refer be true and correct in all material respects on and as of the Incremental Tranche Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term Loans respective dates or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (xy) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance a Limited Condition Transaction, assuming a borrowing and if agreed to by the Incremental Term Lenders providing such Incremental Term Commitments and/or Incremental Term Loans, (A) the Specified Representations and the Acquisition Agreement Representations or (B) to the extent UK-style “certain funds” conditionality is requested by the Borrower, the Major Representations mutatis mutandis (in each case conformed as necessary for such acquisition or the incurrence of the maximum amount relevant Incremental Term Commitments and/or Incremental Term Loans) shall, in each case, be true and correct in all material respects on and as of Loans available thereunderthe Incremental Tranche 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 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 shall be true and correct (yafter giving effect to any qualification therein) without netting the cash proceeds of any in all respects on such Incremental Loansrespective dates;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 5,000,000 (or the Dollar Equivalent in Euros) and shall be in an increment of $1,000,000 (or the Dollar Equivalent in Euros) (provided that such amount may be less than $20,000,000 5,000,000 (or the Dollar Equivalent in Euros) and not in an increment of $1,000,000 (or the Dollar Equivalent in Euros) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencebelow);; and
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal an unlimited amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratioas, determined after giving effect to any such incurrence on a Pro Forma Basis as (including the application of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableproceeds thereof), as (1) if any such Incremental Term Loans are secured by a Lien on the Collateral that is pari passu with the Lien on Collateral securing the Initial Term Loans, the Senior Secured Net Leverage Ratio shall not exceed 5.00:1.00 or Incremental Revolving Credit Commitments(2), as applicable, available under if such Incremental Commitments had been outstanding Term Loans are secured by a Lien on the last day of such periodCollateral that is junior to the Lien on Collateral securing the Initial Term Loans, andare secured by a Lien on assets other than the Collateral or is unsecured, the Total Net Leverage Ratio shall not exceed 6.50:1.00, in each case (x) with respect to any Incremental Revolving Credit Commitmentcase, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) calculated without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeTerm Loan.
Appears in 3 contracts
Sources: Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations; provided, further, that the reference to “Material Adverse Effect” in Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent First Lien Debt, all voluntary commitment reductions prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.85 to 1.00, (2) if such Indebtedness is secured by the Collateral on a junior Lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing the most recently ended period of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansfour consecutive fiscal quarters for which financial statements are internally available, does not exceed 3.75 6.25 to 1.001.00 and (3) if such Indebtedness is unsecured (or not secured by all or any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 6.25 to 1.00 or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is not less than 2.00 to 1.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and Section 7.03(w) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn, (b) the cash proceeds of any Incremental Facility shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded.
Appears in 3 contracts
Sources: Credit Agreement (Alight Group, Inc.), Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (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, no Default or Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties in Article V of this Agreement shall refer to be true and correct in all material respects (or, in the accuracy case of the representations any representation and warranties warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition language, in all respects) on and as defined 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 main transaction agreement governing such Permitted Acquisitionrespective date or for the respective period, as the case may be);
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iii) below);; and
(viii) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal an amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Incremental Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis and as of the last day date of the incurrence of such Incremental Loans and following the incurrence or issuance of such Indebtedness, the Consolidated Leverage Ratio for the Borrower’s most recently ended period of four consecutive full fiscal quarters for which financial statements are internally availablehave been delivered pursuant to Section 6.01(a) or (b) immediately preceding the date on which such Indebtedness is incurred would not exceed 2.0 to 1.0, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if any Incremental Term Loans or Incremental Revolving Credit Commitmentsthe additional Indebtedness had been incurred, as applicablethe case may be, available under such Incremental Commitments had been outstanding on at the last day beginning of such four-quarter period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 2 contracts
Sources: Second Lien Term Loan Credit Agreement (Nabors Industries LTD), Term Loan Credit Agreement (Parker Drilling Co /De/)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) after giving effect to such Incremental Commitments, the following conditions shall be satisfied (xit being understood that all references to “the date of such Borrowing” or similar language shall be deemed to refer to the effective date of such Incremental Amendment) (provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisitionan Investment, or irrevocable repayment, repurchase or redemption, there shall be no Event of requirement to satisfy any or all such conditions except that (A) no Payment or Bankruptcy Default under Sections 8.01(a) or (f) with respect to any Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, which requirement in this clause (A) shall not be omitted or (y) if otherwise, no Event waived without the consent 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, the conditions of Sections 4.02(i) Required Lenders and (iiB) shall be satisfied (it being understood that all references to “in the date case of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisitionan Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (conformed as necessary to apply only to such Investment), (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionInvestment and (z) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders):
(A) the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and
(B) no Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application of the proceeds therefrom;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viii) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less Loans, together with the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qIncremental Equivalent Debt, shall not exceed $200,000,000 (the “Incremental Availability Amount”);
(iv) at or prior to such time plus (B) all voluntary prepayments the incurrence of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent any such Incremental Term Loans shall be in compliance with all obligations under Regulations T, U and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as X issued by the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00FRB; and
(viv) such other conditions as the BorrowerBorrower Representative, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 2 contracts
Sources: Credit Agreement (GIC Private LTD), Credit Agreement (Blackstone Holdings III 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 4.75 to 1.001.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) or Section 7.03(u) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn and (b) the cash proceeds of any Incremental Facility shall be excluded from any calculation of “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded.
Appears in 2 contracts
Sources: Credit Agreement (Gates Industrial Corp PLC), Credit Agreement (Gates Industrial Corp PLC)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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 AcquisitionAcquisition or similar Investment, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii4.02(a) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 150,000,000 less (1) the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time and (2) the Incremental Term Loan B Base Amount at or prior to such time plus (B) (x) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding (i) voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit CommitmentsLoans, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow and (ii) voluntary prepayments from the proceeds of Indebtedness), and (y) the cash amount paid in respect of any reduction in the outstanding principal amount of the Term Loans and/or any Incremental Loans resulting from assignments to (and purchases by) the Borrower or any Restricted Subsidiary (excluding (i) voluntary prepayments of Incremental Term Loans, to the extent such Incremental Term Loans were obtained pursuant to clause (C) below and (ii) voluntary prepayments from the proceeds of Indebtedness) plus (C) (x) in the case of Incremental Commitments that are secured on a pari passu or junior basis to the Liens securing the Obligations, additional amounts so long as the Consolidated First Lien Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicableLoans, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 4.25 to 1.00 or (y) in the case of Incremental Commitments incurred on an unsecured basis, additional amounts so long as the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans, available under such Incremental Commitments had been outstanding on the last day of such period, and in each case without netting the cash proceeds of any such Incremental Loans, does not exceed 4.50 to 1.00, as if any Incremental Term Loans, available under such Incremental Commitments had been outstanding on the last day of such period; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (Vine Resources Inc.), Term Loan Credit Agreement (Vine Resources Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) 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; provided that in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, the foregoing condition shall be (A) no Event of Default shall have occurred and be continuing on the date of the definitive purchase agreement for such Limited Condition Acquisition and (B) no Event of Default under Section 9.01(a), (f) or (g) shall have occurred and be continuing or would exist after giving effect to such Limited Condition Acquisition and the funding of such Incremental Term Loan;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties set forth in Article VI shall refer be true and correct as and to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” extent set forth in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionSection 5.03;
(iii) the Borrower and its Restricted Subsidiaries Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating that the Loan Parties would be in compliance with the covenant financial covenants set forth in Section 7.11 if such covenant is then in effect, determined 8.11 recomputed as of the end of the period of the four (4) fiscal quarters most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) or 7.01(b) after giving effect to any Incremental Commitments on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term (assuming all Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on as of the last day of such fiscal quarter period); provided, that in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, receipt of such Pro Forma Compliance Certificate may be satisfied in accordance with Section 1.03(e), at the option of the Borrower for testing compliance therewithBorrower, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of on the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLCA Test Date;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 (or if less, the entire remaining amount available for such institution) and shall be in an increment of $1,000,000 (provided that or such amount may be less than $20,000,000 if such amount represents all remaining availability under lesser amounts as agreed by 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 $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 the next sentenceAdministrative Agent);
(v) after giving effect to such Incremental Commitment, the aggregate principal amount of the all Incremental Term Loans and the Incremental Revolving Credit Commitments effected pursuant to this Section 2.16 shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 500,000,000 plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts an unlimited amount so long as the Consolidated First Lien Net Leverage Ratio, determined Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if and assuming any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on are fully drawn) is not greater than 2.75:1.00;
(vi) receipt by the last day Administrative Agent of (A) such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing resolutions of the maximum amount board of Loans available thereunderdirectors of the Loan Parties and opinions of counsel to the Loan Parties as it may reasonably request relating to the organizational authority for such Commitment increase and the enforceability thereof and any other matters relevant thereto, and (yB) without netting such amendments to the cash proceeds of any such Incremental LoansCollateral Documents as may be reasonably requested by the Administrative Agent, does not exceed 3.75 all in form and substance reasonably satisfactory to 1.00; andthe Administrative Agent;
(vivii) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. For purposes of calculating the aggregate principal amount of all Incremental Commitments pursuant to Section 2.16(d)(v) above, the Borrower may elect to use sub-clauses (A) or (B) of Section 2.16(d)(v) above in any order or concurrently. If both sub-clause (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected sub-clause (B). If the Borrower incurs any amounts under such sub-clause (A) above concurrently with sub-clause (B) above, any amounts incurred under sub-clause (A) above will not count as Indebtedness for purposes of calculating the Consolidated First Lien Leverage Ratio at such time.
Appears in 2 contracts
Sources: Receivables Funding and Administration Agreement (Synnex Corp), Credit Agreement (Synnex 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 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations; provided, further, that the reference to “Material Adverse Effect” in Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent First Lien Debt, all voluntary commitment reductions prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.85 to 1.00, (2) if such Indebtedness is secured by the Collateral on a junior Lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing the most recently ended period of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansfour consecutive fiscal quarters for which financial statements are internally available, does not exceed 3.75 6.25 to 1.001.00 and (3) if such Indebtedness is unsecured (or not secured by all or any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 6.25 to 1.00 or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is not less than 2.00 to 1.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and Section 7.03(w) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
and (vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn, (b) the cash proceeds of any Incremental Facility shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded.
Appears in 2 contracts
Sources: Credit Agreement (Alight Inc. / DE), Credit Agreement (Alight Inc. / DE)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections 4.02(i) and (iiSection 4.02(i) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations; provided, further, that the reference to “Material Adverse Effect” in Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (BA) all voluntary prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent First Lien Debt, all voluntary prepayments of Term Revolving Credit Loans and accompanied by corresponding voluntary commitment permanent reductions of Commitments in respect of such Revolving Credit Commitments Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.85 to 1.00, (2) if such Indebtedness is secured by the Collateral on a junior Lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing the most recently ended period of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansfour consecutive fiscal quarters for which financial statements are internally available, does not exceed 3.75 6.25 to 1.001.00 and (3) if such Indebtedness is unsecured (or not secured by all or any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 6.25 to 1.00 or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is not less than 2.00 to 1.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and Section 7.03(w) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn, (b) the cash proceeds of any Incremental Facility shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, shall be disregarded.
Appears in 2 contracts
Sources: Credit Agreement (Alight, Inc. /DE), Credit Agreement (Alight, Inc. / Delaware)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f8.01(f) 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, the conditions of Sections 4.02(i) and (ii4.02(ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that that, if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case case, (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 350,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case case, (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 6.00 to 1.00 (or, after the first anniversary of the Closing Date, 5.75 to 1.00);
(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 Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Commitment is provided with the benefit of the applicable Loan Documents; and
(vivii) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 2 contracts
Sources: Credit Agreement (La Quinta Holdings Inc.), Credit Agreement (La Quinta Holdings 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant covenants set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)[reserved];
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed an amount equal to 100% of Consolidated EBITDA of the sum Borrower at the time of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitmentsincurrence, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined calculated on a Pro Forma Basis pro form basis as of the last day of the most recently ended period of four consecutive fiscal quarters quarter period for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had have been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00delivered; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 2 contracts
Sources: Credit Agreement (Red Lion Hotels CORP), Credit Agreement (Red Lion Hotels 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(a) (i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsCommitments (provided that, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect with respect to such any Incremental Commitments;
(ii) after giving effect to such Incremental CommitmentsAmendment in connection with a Limited Condition Transaction, the conditions of Sections 4.02(irequirement 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 or any other Loan Document shall be satisfied (it being understood that true and correct in all references to “material respects on and as of the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer Incremental Amendment (provided that, to the effective date of extent that such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall specifically refer to the accuracy an earlier date, they shall be true and correct in all material respects as of the representations such earlier date and warranties any representation and warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that in connection with a Limited Condition Transaction, the covenant set forth conditions in Section 7.11 if such covenant is then clause (i) and in effect, determined on a Pro Forma Basis as clause (ii) shall (x) only be required to the extent requested by the non-Affiliated Lenders providing more than 50% of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, may be and (y) without netting shall be tested (if applicable) solely on the cash proceeds of any such Incremental Loansapplicable LCT Test Date as selected by the Borrower pursuant to Section 1.07(11);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $20,000,000 5,000,000 (or such lesser amount) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (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 the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause shall not, together with the 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) $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), plus 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) additional amounts 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 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 Consolidated case of this clause (iii) only (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, determined on a Pro Forma Basis as of Ratio for the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if calculated on a pro forma basis after giving effect to any Incremental Term Loans such incurrence does not exceed 2.75 to 1.00 (including in connection with an acquisition or Incremental Revolving Credit Commitments, as applicable, available other Investment permitted under such Incremental Commitments had been outstanding on the last day of such period, and, in each case this Agreement) and (xB) 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 Credit CommitmentCommitments, assuming a borrowing of the maximum amount of Loans available thereunder, such Incremental Revolving Commitments under this clause (I) are fully drawn and (yii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds of 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 LoansLoans 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, (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; and1.00 (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
(viIII) 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 conditions as 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, each then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Lender providing Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the 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 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 Commitments Delayed Draw Term Loan Commitment (and any associated Incremental Delayed Draw Term Loan) or Incremental Equivalent Debt in the Administrative Agent form of a delayed draw term loan or note), such Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall agreebe 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 Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall be determined as of the applicable date of funding thereunder (and not as of the date the corresponding delayed draw commitments are established)).
Appears in 2 contracts
Sources: Credit Agreement (LifeStance Health Group, Inc.), Credit Agreement (LifeStance Health Group, Inc.)
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 thereof (which shall be no earlier than the date of such Incremental 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) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) Section 4.02 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of Incremental Amendment Date); provided, that, such Incremental Amendment); provided that if Amendment may include a waiver by the proceeds Incremental Lenders party thereto of such the condition set forth in Section 4.02(iii) and, in connection with any Incremental Commitments are being used Commitment, the primary purpose of which is to finance a Permitted Acquisition, (x) the reference a waiver in 4.02(i) to the accuracy full or in part of the representations and warranties shall refer condition set forth in clause (ii) (other than with respect to the accuracy any Event of the representations and warranties that would constitute Specified Representations Default under Section 8.01(a) or (f)) of Section 4.02 and (y) the reference with respect to “Material Adverse Effect” in clause (i) of Section 4.02, solely the Specified Representations shall be understood for this purpose required to be true and correct in all material respects on and as of the date of such Incremental Amendment (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 definition as defined language shall be true and correct (after giving effect to any qualification therein) in the main transaction agreement governing all respects on such Permitted Acquisitionrespective dates);
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (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)(iii)), or, in the next sentencecase of any Incremental Commitment denominated in Canadian Dollars, an aggregate principal amount that is not less than Cdn$5,000,000 (provided that such amount may be less than Cdn$5,000,000 if such amount represents all remaining availability under the limit set forth in Section 2.14(d)(iii));
(viii) (A) after giving Pro Forma Effect to both (x) the aggregate amount making of Incremental Loans under such Incremental Amendment and (y) any Specified Transactions consummated in connection therewith, the Secured Net Leverage Ratio calculated on a Pro Forma Basis does not exceed either (x) 3.75:1.00 or (y) solely if such Incremental Term Loans are incurred in connection with a Permitted Acquisition, the Secured Net Leverage Ratio immediately prior to giving effect to such Incremental Loans and the consummation of such Permitted Acquisition; or (B) together with the Incremental Revolving Credit Commitments shall Loans made under such Incremental Amendment, the aggregate principal amount of Incremental Loans made under this clause (B) (plus Incremental Equivalent Debt incurred in reliance on clause (i)(B) of the proviso of Section 2.14(h)) does not exceed the sum of (Ai) the greater of (x) $1,500,000,000 less 475,000,000 and (y) 100% of Consolidated EBITDA plus (ii) the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all any voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, other than to the extent such made with the proceeds of Indebtedness (other than the incurrence of Revolving Loans or extensions of credit under any other revolving credit or similar facility)); provided, that, it is understood that (1) Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to may be incurred under either clause (CA) below)or clause (B) as selected by the Borrower in its sole discretion, plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as including by designating any portion of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on in excess of an amount permitted to be incurred under clause (A) at the last day time of such period, and, in each case incurrence as incurred under clause (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00B); and
(viiv) such other conditions as to the Borrowerextent reasonably requested by the Administrative Agent, each Incremental Lender providing such Incremental Commitments and receipt by the Administrative Agent shall agreeof (A) customary legal opinions, board resolutions and officers’ certificates (including solvency 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 (B) reaffirmation agreements and/or such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Lenders are provided with the benefit of the applicable Loan Documents.
Appears in 2 contracts
Sources: Term Loan Credit Agreement (BRP Inc.), Term Loan Credit Agreement (BRP 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 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 AcquisitionAcquisition or similar Investment, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii4.02(a) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 150,000,000 less (1) the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time and (2) the Incremental Term Loan C Base Amount at or prior to such time plus (B) (x) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding (i) voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit CommitmentsLoans, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow and (ii) voluntary prepayments from the proceeds of Indebtedness), and (y) the cash amount paid in respect of any reduction in the outstanding principal amount of the Term Loans and/or any Incremental Loans resulting from assignments to (and purchases by) the Borrower or any Restricted Subsidiary (excluding (i) voluntary prepayments of Incremental Term Loans, to the extent such Incremental Term Loans were obtained pursuant to clause (C) below and (ii) voluntary prepayments from the proceeds of Indebtedness) plus (C) (x) in the case of Incremental Commitments that are secured on a pari passu or junior basis to the Liens securing the Obligations, additional amounts so long as the Consolidated First Lien Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicableLoans, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 4.25 to 1.00 or (y) in the case of Incremental Commitments incurred on an unsecured basis, additional amounts so long as the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans, available under such Incremental Commitments had been outstanding on the last day of such period, and in each case without netting the cash proceeds of any such Incremental Loans, does not exceed 4.50 to 1.00, as if any Incremental Term Loans, available under such Incremental Commitments had been outstanding on the last day of such period; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 2 contracts
Sources: Term Loan B Credit Agreement (Vine Resources Inc.), Term Loan B Credit Agreement (Vine Resources 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 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 AcquisitionAcquisition or other similar Investment not prohibited by this Agreement, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i4.02(a) and (iib) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or other similar Investment not prohibited by this Agreement, (x) the reference in 4.02(i4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionAcquisition or Investment;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) the greater of (x) $1,500,000,000 1,300,000,000 and (y) 100% of LTM Consolidated EBITDA less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans Loans, voluntary prepayments of any Indebtedness secured by the Collateral on a pari passu basis with the Liens on the Collateral securing the Obligations and voluntary commitment reductions of Revolving Credit Commitments Commitments, in each case, after the Closing Date but prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash for such Loans purchased or retired in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions (i) of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or (ii) with the proceeds of Indebtedness), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans but with giving effect to the application of such Incremental Loans, does not exceed 3.75 the Applicable Consolidated First Lien Net Leverage Ratio Level (or if such Incremental Commitments or Incremental Loans are incurred in connection with a Permitted Acquisition or other similar Investment not prohibited by this Agreement, no greater than the greater of (1) the Applicable Consolidated First Lien Net Leverage Ratio Level and (2) the Consolidated First Lien Net Leverage Ratio immediately prior to 1.00the consummation of such Permitted Acquisition or Investment) (the amounts under the foregoing clauses (A) and (B), the “Fixed Incremental Amount” and, the amounts under the foregoing clause (C), the “Ratio Incremental Amount”); and
(vi) such other conditions as the BorrowerCompany, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Ratio Incremental Amount prior to the Fixed Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Fixed Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Ratio Incremental Amount if the Borrower meets the applicable ratio for the Ratio Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Ratio Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower.
Appears in 2 contracts
Sources: Credit Agreement (Hilton Grand Vacations Inc.), Credit Agreement (Hilton Grand Vacations Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) 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; provided, that, in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, the foregoing condition shall be (A) no Event of Default shall have occurred and be continuing on the date of execution of the definitive purchase agreement for such Limited Condition Acquisition and (B) no Event of Default under Section 9.01(a), (f) or (g) shall have occurred and be continuing or would exist after giving effect to such Limited Condition Acquisition and the funding of such Incremental Term Loan;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties set forth in Article VI shall refer be true and correct as and to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” extent set forth in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionSection 5.02;
(iii) the Borrower and its Restricted Subsidiaries Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating that the Loan Parties would be in compliance with the covenant financial covenants set forth in Section 7.11 if 8.11 recomputed as of the last day of the period of four (4) fiscal quarters of the Borrower most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) or 7.01(b) (or, prior to the first such covenant is then in effectdelivery, determined the financial statements for the fiscal quarter ended October 31, 2020) after giving effect to any Incremental Commitments on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term (assuming all Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on as of the last day of such fiscal quarter period); provided, that, in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, receipt of such Pro Forma Compliance Certificate may be satisfied in accordance with Section 1.03(e), at the option of the Borrower Borrower, on the applicable LCA Test Date for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLimited Condition Acquisition;
(iv) each the aggregate Incremental Commitments for any Revolving Commitment Increase or any other Class of Incremental Term Commitment Loan shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 (or if less, the entire remaining amount available for such institution) and shall be in an increment of $1,000,000 (provided that or such amount may be less than $20,000,000 if such amount represents all remaining availability under lesser amounts as agreed by 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 $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 the next sentenceAdministrative Agent);
(v) after giving effect to the establishment of such Incremental Commitments, the aggregate principal amount of the all Incremental Term Loans and the Incremental Revolving Credit Commitments effected pursuant to this Section 2.16 shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 250,000,000 plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts an unlimited amount so long as the Consolidated First Lien Net Secured Leverage Ratio, determined Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if and assuming any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on are fully drawn) is less than 2.25:1.0;
(vi) receipt by the last day Administrative Agent of (A) such resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties as it may reasonably request relating to the organizational authority for the establishment of such period, and, in each case (x) with respect to Incremental Commitments and the enforceability thereof and any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunderother matters relevant thereto, and (yB) without netting such amendments to the cash proceeds of any such Incremental LoansCollateral Documents as may be reasonably requested by the Administrative Agent, does not exceed 3.75 all in form and substance reasonably satisfactory to 1.00; andthe Administrative Agent;
(vivii) such other conditions as the Borrower, each Incremental Lender providing any such Incremental Commitments Commitment and the Administrative Agent shall agree. For purposes of calculating the aggregate principal amount of all Incremental Commitments pursuant to Section 2.16(d)(v), the Borrower may elect to establish such Incremental Commitments in reliance on Section 2.16(d)(v)(A) or Section 2.16(d)(v)(B) in any order or concurrently. If in connection with the establishment of any Incremental Commitments the Borrower is able to establish such Incremental Commitments in reliance on either of Section 2.16(d)(v)(A) or Section 2.16(d)(v)(B), and the Borrower does not notify the Administrative Agent as to which section such Incremental Commitments are being established make an election as to which section such Incremental Commitments are being established, the Borrower will be deemed to have established such Incremental Commitments in reliance on Section 2.16(d)(v)(B). If the Borrower establishes Incremental Commitments in reliance on Section 2.16(d)(v)(A) concurrently with the establishment of Incremental Commitments in reliance on Section 2.16(d)(v)(B), the amount of any such Incremental Commitments established in reliance on Section 2.16(d)(v)(A) shall be disregarded for purposes of calculating the Consolidated Secured Leverage Ratio in connection with determining the permissibility of the amount of such Incremental Commitments that may be established at such time in reliance on Section 2.16(d)(v)(B).
Appears in 2 contracts
Sources: Credit Agreement (Docusign, Inc.), Credit Agreement (Docusign, 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 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations, in each case, subject to the reference to “Material Adverse Effect” provisions set forth herein in connection with Limited Condition Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans Loans, Incremental Equivalent First Lien Debt and all voluntary commitment reductions prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash for such Loans purchased or retired in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed (x) 4.25 to 1.00 or (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other similar Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing the most recently ended period of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansfour consecutive fiscal quarters for which financial statements are internally available, does not exceed 3.75 (x) 4.25 to 1.001.00 or (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other similar Investment not prohibited hereunder, the Consolidated Secured Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment and (3) if such Indebtedness is unsecured (or not secured by all or any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed (x) 5.50 to 1.00 or (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other similar Investment not prohibited hereunder, the Consolidated Total Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, is not less than (x) 2.00 to 1.00 or (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other similar Investment not prohibited hereunder, the Consolidated Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other similar Investment (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount,” and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and Section 7.03(w) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, Borrower and each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn, (b) to the extent promptly applied to finance a Permitted Acquisition, other similar Investment or other Specified Transaction not prohibited hereunder, the cash proceeds of any Incremental Facility shall be excluded from any calculation of “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility and any other revolving facilities included in such calculation) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, and/or any incurrence of Indebtedness under the Revolving Credit Facility or any other revolving facility that is used to finance working capital needs of the Borrower and its Restricted Subsidiaries (as reasonably determined by the Borrower) shall, in each case, be disregarded.
Appears in 2 contracts
Sources: Credit Agreement (NRG Energy, Inc.), Credit Agreement (Vivint Smart Home, 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(a) (i) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted AcquisitionLimited Condition Transaction, the requirement pursuant to this clause (4)(a)(i) shall be that no Event of Default under Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) the representations and warranties of the Borrower contained in Article V or any other Loan Document shall be satisfied (it being understood that true and correct in all references to “material respects on and as of the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer Incremental Amendment (provided that, to the effective date of extent that such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall specifically refer to the accuracy an earlier date, they shall be true and correct in all material respects as of the representations such earlier date and warranties any representation and warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that in connection with the covenant set forth in Section 7.11 if such covenant is then in effecta Limited Condition Transaction, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect the conditions in 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 any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, Section 1.07(11) and (y) without netting the cash proceeds 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 any such the applicable Incremental LoansTerm Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be;
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $20,000,000 5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit 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 (or in an increment the case of $1,000,000 the Priority Revolving Facility, Priority Revolving Agent) may reasonably agree) (provided that such amount may be less than $5,000,000 5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (Cthe 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) $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, Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Closing Date Term Loans, Incremental Term Loans or such Permitted Incremental Equivalent Debt by Holdings, 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) additional amounts [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, 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 have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)), plus
(ii) (I) in the 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 Consolidated 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 on a Pro Forma Basis as of Ratio for the last day of the Test Period most recently ended period calculated on a pro forma basis after giving effect to any 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 four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or an incurrence of Incremental Revolving Credit Commitments, as applicable, available under assuming such Incremental Revolving Commitments had been outstanding on are fully drawn and calculating the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) 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 Incremental Loans, incurrence does not exceed 3.75 5.75 to 1.00; and1.00 (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
(viIII) 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) 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 conditions as Investment permitted under this Agreement) or (2) to the extent such Incremental Loans or Incremental Revolving Commitments 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) above, 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 Loans then proposed to be incurred). 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, each then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Lender providing Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the definition of Available Incremental Amount shall be automatically reclassified as incurred under clause (iii) of the definition of Available Incremental Amount at such Incremental Commitments and time as the Administrative Agent shall agreeBorrower would meet the applicable leverage-based incurrence test at such time on a pro forma basis, unless otherwise elected by the Borrower.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Convey Holding Parent, Inc.), First Lien Credit Agreement (Convey Holding Parent, 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(a) (i) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted AcquisitionLimited Condition Transaction, the requirement pursuant to this clause (4)(a)(i) shall be that no Event of Default under Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) the representations and warranties of the Borrower contained in Article V or any other Loan Document shall be satisfied (it being understood that true and correct in all references to “material respects on and as of the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer Incremental Amendment (provided that, to the effective date of extent that such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall specifically refer to the accuracy an earlier date, they shall be true and correct in all material respects as of the representations such earlier date and warranties any representation and warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that in connection with the covenant set forth in Section 7.11 if such covenant is then in effecta Limited Condition Transaction, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect the conditions in 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 any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, Section 1.07(11) and (y) without netting the cash proceeds 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 any such the applicable Incremental LoansTerm Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be;
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $20,000,000 5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit 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 (or in an increment the case of $1,000,000 the Priority Revolving Facility, Priority Revolving Agent) may reasonably agree) (provided that such amount may be less than $5,000,000 5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (Cthe 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) $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 Incremental Term Loans), Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Closing Date Term Loans (including 2021 Incremental Term Loans), Incremental Term Loans or such Permitted Incremental Equivalent Debt by Holdings, 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) additional amounts [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 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 have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)), plus
(ii) (I) in the 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 Consolidated 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 on a Pro Forma Basis as of Ratio for the last day of the Test Period most recently ended period calculated on a pro forma basis after giving effect to any 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 four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or an incurrence of Incremental Revolving Credit Commitments, as applicable, available under assuming such Incremental Revolving Commitments had been outstanding on are fully drawn and calculating the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) 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 Incremental Loans, incurrence does not exceed 3.75 5.75 to 1.00; and1.00 (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
(viIII) 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) 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 conditions as Investment permitted under this Agreement) or (2) to the extent such Incremental Loans or Incremental Revolving Commitments 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) above, 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 Loans then proposed to be incurred). 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, each then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Lender providing Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the definition of Available Incremental Amount shall be automatically reclassified as incurred under clause (iii) of the definition of Available Incremental Amount at such Incremental Commitments and time as the Administrative Agent shall agreeBorrower would meet the applicable leverage-based incurrence test at such time on a pro forma basis, unless otherwise elected by the Borrower.
Appears in 2 contracts
Sources: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.), First Lien Credit Agreement (Convey Holding Parent, 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted AcquisitionLimited Condition Transaction, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to materiality”, “Material Adverse Effect” or similar definition as defined language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates); provided that, in connection with a Limited Condition Transaction, the conditions in the main transaction agreement governing such Permitted Acquisitionproviso 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, Incremental Term Commitments and Incremental Revolving Commitments, as the case may be;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (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 (c) of this Section 2.14(4)) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the next sentencelimit set forth in clause (c) of Section 2.14(4));
(vc) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause shall not, together with the aggregate principal amount of (Ci) below)Permitted Incremental Equivalent Debt, plus (Cii) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) solely with respect to any Incremental Term Loans and Incremental Revolving Commitments incurred in reliance on clause (A) below, any Credit Commitment, assuming a borrowing Agreement Refinancing Indebtedness in respect thereof up to the lesser of the maximum principal amount of such Refinanced Permitted Incremental Equivalent Debt incurred in reliance on clause (A) below and the principal amount of such refinanced Incremental Term Loans available thereunder, and Incremental Revolving Commitments that would not have been permitted to be incurred pursuant to clauses (B) or (C) below on the date of incurrence of such Credit Agreement Refinancing Indebtedness and (yiii)solely with respect to any Permitted Incremental Equivalent Debt incurred in reliance on clause (A) without netting below, any Refinancing Indebtedness in respect of such Permitted Incremental Equivalent Debt (excluding any Incremental Amounts) up to the cash proceeds lesser of any the principal amount of such refinanced Permitted Incremental LoansEquivalent Debt incurred in reliance on clause (A) below and the principal amount of such Refinanced Permitted Incremental Equivalent Debt that would not have been permitted to be incurred pursuant to clauses (B) or (C) below on the date of incurrence of such Refinancing Indebtedness, does not exceed 3.75 to 1.00; andthe sum of:
(viA) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments greater of (i) $150,000,000 and (ii) 100% of Consolidated EBITDA of the Borrower and the Administrative Agent shall agree.Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), plus:
(B) an unlimited amount, so long as in the case of this clause (B) only;
Appears in 2 contracts
Sources: Credit Agreement (GreenSky, Inc.), Credit Agreement (GreenSky, 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 thereof (the “Incremental Facility Tranche Closing Date”) of each of the following conditions:
(i) (xA) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Default or Event of Default under Sections 8.01(a) exists or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, Amendment; provided that if the primary purpose of proceeds of such Incremental Loans is to finance a Permitted Acquisition or (y) if otherwise, no Event Specified Investment then the foregoing shall be limited to the Specified Events of Default and (B) to the extent subject to testing, the Borrower shall have occurred and be continuing or would exist in compliance on a Pro Forma Basis with the Financial Performance Covenant after giving effect to such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, either (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Credit Party set forth in Section 4 and in each other Credit Document shall refer be true and correct in all material respects on and as of the Incremental Tranche Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term Loans respective dates or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (xy) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance a Permitted Acquisition or Specified Investment, assuming a borrowing and if agreed to by the Incremental Lenders providing such Incremental Commitments and/or Incremental Loans, (A) the Specified Representations and the Acquisition Agreement Representations or (B) to the extent UK-style “certain funds” conditionality is requested by the Borrower, the Major Representations mutatis mutandis (in each case conformed as necessary for such acquisition or the incurrence of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such relevant Incremental Commitments and/or Incremental Loans) shall, in each case, be true and correct in all material respects on and as of the Incremental Tranche 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 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 shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of $1,000,000 [REDACTED – Dollar Amount] (or the Dollar Equivalent in Pounds Sterling) (provided that such amount may be less than $20,000,000 [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) below), and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of $1,000,000 [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) (provided that such amount may be less than $5,000,000 [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of [REDACTED – Dollar Amount] (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) below);; and
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less [REDACTED – Dollar Amount] (or the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at Dollar Equivalent in Euros or prior to such time Pounds Sterling), plus (B) all voluntary prepayments at the Borrower’s option, up to an unlimited additional amount of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitments so long as, as applicableafter giving effect to any such incurrence on a Pro Forma Basis (and after giving effect to any Permitted Acquisition or other Investment consummated in connection therewith on a Pro Forma Basis), available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) and with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and the Senior Secured Net Leverage Ratio on a Pro Forma Basis is no greater than [REDACTED – Commercially Sensitive Information], (y1) calculated without netting the cash proceeds of any Incremental Loan or Incremental Revolving Commitment and (2) assuming, in the case of any Incremental Revolving Commitment that such Incremental Loans, does Revolving Commitment was fully drawn on the date of effectiveness thereof (it being understood that Incremental Term Loans and Incremental Revolving Commitments may not exceed 3.75 to 1.00; and
be incurred under clause (viB) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeunless there is no capacity under clause (A)).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Concordia Healthcare Corp.)
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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used subject to finance a Permitted AcquisitionSection 1.09(f), no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing exist 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 Term Commitments;
(ii) after giving effect subject to such Incremental CommitmentsSection 1.09(f), the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article IV and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that
(i) any representation and warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (ii) in the main transaction agreement governing case of the representation and warranty under Section 4.05(b), a Material Adverse Effect that 91 previously existed but that has ceased to exist on the date that such Permitted Acquisitionrepresentation and warranty is being made, shall not result in such representation and warranty being untrue;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencebelow);
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Available Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00Amount; and
(viA) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (1) customary 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 (2) 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 are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrowers and the Lenders providing such Incremental Term Commitments and the Administrative Agent shall 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 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 AcquisitionAcquisition or similar Investment, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitmentsat the time of entering into a definitive agreement in respect thereof, 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that (a) if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or similar Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionAcquisition and (b) the requirement to deliver a Committed Loan Notice may be waived;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent First Lien Debt and voluntary commitment prepayments of Incremental Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Incremental Revolving Credit Commitments Loans prior to or simultaneous with the Incremental Facility Closing Date Date, including through “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Incremental Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause funded with a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans)), plus (C) additional unlimited amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (i) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed either (a) 4.50 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated First Lien Net Leverage Ratio in effect immediately prior thereto, (ii) if such Indebtedness is secured by the Collateral on a junior basis to Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed either (a) 4.50 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated Secured Net Leverage Ratio in effect immediately prior thereto or (iii) if such Indebtedness is contractually subordinated in right of payment to the Obligations, unsecured or secured solely by assets that are not Collateral, either (1) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed either (a) 6.25 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated Total Net Leverage Ratio in effect immediately prior thereto or (2) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, either (a) 2.00 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated Interest Coverage Ratio in effect immediately prior thereto, in each case determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, available 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLoans (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, does not exceed 3.75 and the amounts pursuant to 1.00this clause (C) are herein referred to as the “Incurrence Based Incremental Amount” and together with the Incremental Base Amount, herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof; provided that, if no election is specified, the Borrower shall be deemed to have elected to use the Incurrence Based Incremental Amount, and any portion of any Incremental Term Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Term Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn and (b) the cash proceeds of any Incremental Facility shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included).
Appears in 1 contract
Sources: Credit Agreement (iHeartMedia, 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 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, no Default or Event of Default under Sections 8.01(a) or (f) shall have has occurred and be is continuing or would exist after giving effect result from the Incremental Term Loan; provided that, solely with respect to such any Incremental Commitments, or (y) if otherwiseTerm Loans incurred in connection with an acquisition that is permitted under this Agreement, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to at the time the definitive documentation for such Incremental Commitments;
acquisition is executed; (ii) after giving effect to such Incremental Term Commitments, the conditions of Sections 4.02(i) and (iiSection 3.2(a) shall be satisfied (it being understood that all references to “the date of such Credit Extensiondate” or similar language in such Section 4.02 3.2(a) shall be deemed to refer to the effective date of such Incremental Amendment); provided that that, if the proceeds of such any Incremental Term Commitments are being used to finance a Permitted Acquisitionan acquisition permitted hereunder, (x) the reference in 4.02(iSection 3.2(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations “specified representations” and the representations and warranties in the relevant acquisition agreement the breach of which would permit the buyer to terminate its obligations thereunder or decline to consummate such acquisition and (y) the reference to “Material Adverse Effect” in the Specified Representations “specified representations” shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisitionacquisition permitted hereunder;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Ares Commercial Real Estate Corp)
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 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, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Term Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an 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 (yi) if otherwise, no Event may be waived or omitted by Incremental Term Lenders holding more than 50% of Default shall have occurred and be continuing or would exist after giving effect to the aggregate Incremental Term Commitments under such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance an Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, assuming a borrowing line of business or division of, or all or substantially all of the maximum amount of Loans available thereunderEquity Interests of, and another Person, this clause (yii) without netting (other than with respect to the cash proceeds Specified Representations) may be waived or omitted (or the scope or content of any representation and warranty modified) by Incremental Term Lenders holding more than 50% of the aggregate Incremental Term Commitments under such Incremental LoansAmendment; provided further that the accuracy of the Specified Representations may not be waived without the consent of the Required Lenders;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 750,000,000 in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior at the Borrower’s option, up to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments an amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis Secured Debt Ratio is no more than 3.25 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableRelevant Reference Period, after giving effect to any such incurrence on a pro forma basis (such amounts under this clause (A) and (B), the “Available Incremental Amount”); provided that any Indebtedness incurred in reliance on clause (A) may be reclassified, as if any Incremental Term Loans or Incremental Revolving Credit Commitmentsthe Borrower may elect from time to time, as applicablehaving been incurred under clause (B) if the Borrower meets the Consolidated Secured Debt Ratio set forth in clause (B) at such time on a pro forma basis); and provided, available further, that if amounts incurred under clause (B) are incurred concurrently with the incurrence of Indebtedness in reliance on clause (A) above, the Consolidated Secured Debt Ratio shall be calculated without giving effect to such Incremental Commitments had been outstanding amounts incurred in reliance on the last day of such period, and, in each case foregoing clause (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00A); and
(viv) (A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective 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 Term Loans are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrower and the Lenders providing such Incremental Term Commitments and the Administrative Agent shall 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 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 Limited Condition Acquisition, (1) no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsCommitments on the LCA Test Date with respect to such Limited Condition Acquisition and (2) no Specified Event of Default shall have occurred and be continuing or would exist after giving effect to such Limited Condition Acquisition on the date of consummation of such Limited Condition Acquisition, 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, the conditions of Sections Section 4.02(i) and (iiiii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Business Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations of the Loan Parties in existence prior to the Permitted Business Acquisition and (y) the reference to “Material Adverse Effect” Effect (as defined in the Specified Representations Purchase Agreement)” shall be understood for this purpose to refer to “Material Adverse Effect” Effect or similar definition as defined in the main transaction agreement governing such Permitted Business Acquisition”;
(iii) after giving effect to such Incremental Commitments, the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans7.10;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) of this Section 2.14(d)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) of this Section 2.14(d));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 10,000,000 (the “Cash-Capped Facilities”), minus (B) the aggregate principal amount of Indebtedness Permitted Incremental Debt previously incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below7.03(o), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableavailable (and including any debt incurrence or retirement subsequent to the end of such test period and on or prior to the date of such incurrence of such Incremental Term Loans, Incremental Revolving Credit Commitments or Permitted Incremental Debt, as applicable), as if any Incremental Term Loans or Loans, Incremental Revolving Credit CommitmentsCommitments or Permitted Incremental Debt, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting excluding the cash proceeds of any such Incremental Loans or Permitted Incremental Debt, as applicable, and (z) assuming that such Incremental Term Loans, Incremental Revolving Credit Commitments and Permitted Incremental Debt, as applicable, are secured pari passu with the Liens securing the Obligations, whether or not so secured, does not exceed 3.75 3.75:1.00 (the “Ratio-Based Incremental Facility”); provided that any Incremental Term Loans and Incremental Revolving Credit Commitments incurred hereunder will count towards the Ratio-Based Incremental Facility (to 1.00the extent permitted by the pro forma calculation of the First Lien Leverage Ratio requirement required prior to the incurrence of such Ratio-Based Incremental Facility) prior to reducing the amount available under the Cash-Capped Facilities;
(vi) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (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 Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such incremental Indebtedness is provided with the benefit of the applicable Loan Documents; and
(vivii) such other conditions as the Borrower, Borrower and each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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 AcquisitionAcquisition or other similar Investment not prohibited by this Agreement, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i4.02(a) and (iib) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or other similar Investment not prohibited by this Agreement, (x) the reference in 4.02(i4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionAcquisition or Investment;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) the greater or (x) $1,500,000,000 625,000,000 and (y) 100% of LTM Consolidated EBITDA less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and Incremental Revolving Credit Commitments (as defined in the Existing RCF Credit Agreement) incurred on or after the Closing Date pursuant to Section 2.14(d)(v)(A) of the Existing RCF Credit Agreement at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of (x) Revolving Credit Commitments and (y) Revolving Credit Commitments (as defined in the Existing RCF Credit Agreement), in each case, after the Closing Date but prior to or simultaneous LEGAL02/43062751v1 with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions (i) of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or (ii) with the proceeds of Indebtedness), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans but with giving effect to the application of such Incremental Loans, does not exceed 3.75 the Applicable Consolidated First Lien Net Leverage Ratio Level (or if such Incremental Commitments or Incremental Loans are incurred in connection with a Permitted Acquisition or other similar Investment not prohibited by this Agreement, no greater than the greater of (1) the Applicable Consolidated First Lien Net Leverage Ratio Level and (2) the Consolidated First Lien Net Leverage Ratio immediately prior to 1.00the consummation of such Permitted Acquisition or Investment) (the amounts under the foregoing clauses (A) and (B), the “Fixed Incremental Amount” and, the amounts under the foregoing clause (C), the “Ratio Incremental Amount”); and
(vi) such other conditions as the BorrowerCompany, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower BorrowerCompany and its Restricted Subsidiaries shall be in compliance with the covenant covenants set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower BorrowerCompany for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 300,000,000450,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions (i) of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or (ii) with the proceeds of Indebtedness), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 0.251.00 to 1.00; and
(vi) such other conditions as the BorrowerBorrowerCompany, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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 Acquisitionan acquisition or an Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections Section 8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) shall have occurred and be continuing or would exist after giving effect to the incurrence of such Incremental Commitments, or (y) if otherwise, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to the incurrence of such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all |US-DOCS\161843207.11|| references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisitionan acquisition or an Investment or irrevocable repayment, (x) the reference repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions in Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (with respect to any acquisition or investment, conformed as necessary to apply only to such acquisition or investment and (y) the reference to “Material Adverse Effect” acquired business); provided, further, that the Incremental Lenders providing such Incremental Commitments may waive or modify in scope the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 2,500,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 2,500,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 1,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $5,000,000 1,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments Commitments, determined at the time of incurrence or establishment thereof, as the case may be, shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) the amount of all voluntary prepayments, repurchases, redemptions and other retirements of Term Loans and, if applicable, all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Loans accompanied by corresponding voluntary permanent reduction of the Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis and (y) yank-a-bank provisions, which, in each case of any such prepayment, repurchase, redemption or retirement, shall be credited to the extent of the principal (or face) amount of Indebtedness so prepaid, repaid, retired or repurchased) (excluding voluntary prepayments prepayments, repurchases, redemptions, and other retirements of Initial Term A Loans, Incremental Term Loans or such other indebtedness and all voluntary permanent commitment reductions of Incremental any Revolving Credit CommitmentsCommitments and any other revolving credit commitments secured on an equal priority basis (without giving effect to the control of remedies) with the Liens securing the Initial Term A Loans, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause funded with the proceeds of a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Total Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 the Financial Covenant TNLR Threshold (the amounts under the foregoing clauses (A) and (B) are herein referred to 1.00; and
(vi) such other conditions as the Borrower, each “Free and Clear Incremental Lender providing such Incremental Commitments Amount,” and the Administrative Agent shall agree.amounts under the foregoing clause (C) are herein referred to as the |US-DOCS\161843207.11||
Appears in 1 contract
Sources: Credit Agreement (Eventbrite, 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 5.20 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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 AcquisitionAcquisition or similar Investment, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitmentsat the time of entering into a definitive agreement in respect thereof, 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that (a) if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or similar Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionAcquisition and (b) the requirement to deliver a Committed Loan Notice may be waived;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and Incremental Equivalent First Lien Debt and voluntary commitment prepayments of Incremental Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Incremental Revolving Credit Commitments Loans prior to or simultaneous with the Incremental Facility Closing Date Date, including through “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and all voluntary commitment prepayments of Incremental Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause funded with a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans)), plus (C) additional unlimited amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (i) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed either (a) 4.50 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated First Lien Net Leverage Ratio in effect immediately prior thereto, (ii) if such Indebtedness is secured by the Collateral on a junior basis to Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed either (a) 4.50 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated Secured Net Leverage Ratio in effect immediately prior thereto or (iii) if such Indebtedness is contractually subordinated in right of payment to the Obligations, unsecured or secured solely by assets that are not Collateral, either (1) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, does not exceed either (a) 6.00 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated Total Net Leverage Ratio in effect immediately prior thereto or (2) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, either (a) 2.00 to 1.00 or (b) in the case of any Incremental Facility incurred to consummate a Permitted Acquisition or other permitted Investment, the Consolidated Interest Coverage Ratio in effect immediately prior thereto, in each case determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, available 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLoans (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount”, does not exceed 3.75 and the amounts pursuant to 1.00this clause (C) are herein referred to as the “Incurrence Based Incremental Amount” and together with the Incremental Base Amount, herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof; provided that, if no election is specified, the Borrower shall be deemed to have elected to use the Incurrence Based Incremental Amount, and any portion of any Incremental Term Facility incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Term Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence Based Incremental Amount, (a) it shall be assumed that all commitments under any Incremental Revolving Facility then being established are fully drawn and (b) the cash proceeds of any Incremental Facility shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included).
Appears in 1 contract
Sources: Credit Agreement (iHeartMedia, 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 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, no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments; provided that, or with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition permitted by this Agreement, the requirement pursuant to this clause (yd)(i) if otherwise, shall be that no Event of Default under Section 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance an acquisition permitted by this Agreement or to fund the repayment or redemption of Indebtedness (to the extent any notice of repayment or redemption is irrevocable), assuming a borrowing this clause (ii) (other than with respect to the accuracy of the maximum amount of Loans available thereunder, and “specified representations” (y) without netting in the cash proceeds case of any such acquisition, as they relate to the target of such acquisition (conformed as reasonably necessary for such acquisition))) may be waived or omitted by Incremental LoansLenders holding more than 50% of the aggregate Incremental Commitments under such Incremental Amendment;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $5,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 100,000,000 in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments at the option of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior the Parent Borrower, up to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments an amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and or Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated Senior Secured First Lien Net Leverage Ratio, determined on a Pro Forma Basis Ratio is no more than 3.50 to 1.00 as of the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableended, as if after giving effect to any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and thereunder (yit being understood that any Incremental Facility may be incurred under clause (B) without netting the cash proceeds regardless of any such Incremental Loans, does not exceed 3.75 to 1.00whether there is capacity under clause (A)); and
(viv) such other conditions as in the Borrower, each Incremental Lender providing such case of any Incremental Commitments and that are to become effective in reliance on clause (A) of Section 2.14(d)(iv), the Administrative Agent proceeds thereof shall agreenot be used to finance a Restricted Payment (other than a Restricted Investment).
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 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, no Event of Default under Sections 8.01(a) or (f) 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, the following conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit ExtensionBorrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, Investment or irrevocable repayment, repurchase or redemption, there shall be no requirement to satisfy any or all such conditions except that (A) the requirement that no Payment or Bankruptcy Default with respect to the Parent or the Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments shall not be omitted or waived without the consent of the Required Lenders and (B) in the case of a Permitted Acquisition or Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Permitted Acquisition or Investment and the acquired business or assets), (y) the any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;Acquisition or Investment and (z) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders:
(iiiA) the Borrower representations and its Restricted Subsidiaries shall be in compliance with the covenant warranties of each Loan Party set forth in Section 7.11 if such covenant Article V and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is then qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in effect, determined all respects as so qualified) on a Pro Forma Basis and as of the effective date of such Incremental Facility Closing Date Amendment with the same effect as though made on and as of such date, except to the last day extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;therefrom.
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencesubsection (iii) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencebelow);
(viii) the aggregate amount of the Incremental Term Loans and Loans, together with the aggregate principal amount of Incremental Revolving Credit Commitments Equivalent Debt, determined at the time of incurrence thereof, shall not exceed the sum of of:
(A) the greater of (1) $1,500,000,000 less the aggregate principal amount 150,000,000 and (2) 20.00% of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus LTM Consolidated EBITDA, plus
(B) [reserved], plus
(C) the amount actually paid in cash of all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Initial Term Loans Loans, Incremental Term Loans, Secured Notes, Permitted Refinancing of any Indebtedness permitted to be incurred under this Agreement, and voluntary Incremental Equivalent First Lien Debt and any other Indebtedness (other than revolving credit loans unless accompanied by a corresponding permanent commitment reductions of Revolving Credit Commitments reduction), in each case, secured on a pari passu basis with the Liens securing the Initial Facility prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments including through “Dutch Auctions” open to all Lenders of Incremental Term Loans and voluntary commitment reductions the applicable Class on a pro rata basis in accordance with procedures of Incremental Revolving Credit Commitmentsthe type described in Section 2.04(a)(iv), which, in the case of any such prepayment, repurchase, redemption or retirement, shall be credited to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant of the principal (or face) amount of Indebtedness so prepaid, repaid, retired or repurchased) (except to clause the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans)), plus plus
(CD) additional amounts (including at any time prior to the utilization of amounts under the Base Incremental Amount (as defined below)) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansBasis, does not exceed 3.75 4.50 to 1.00; and
, (vi2) if such other conditions as Indebtedness is secured by the BorrowerCollateral on a junior lien basis to the Liens securing the Initial Term Loans, each Incremental Lender providing the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis, does not exceed 4.50 to 1.00 and (3) if such Incremental Commitments and Indebtedness is unsecured, such Indebtedness complies with the Administrative Agent shall agree.requirements of “Permitted Ratio Debt”;
Appears in 1 contract
Sources: Term Loan Credit Agreement (NGL Energy Partners LP)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) subject to Section 1.04(a), on the Incremental Facility Closing Date and after giving pro forma effect to such Incremental Commitments (x) if and assuming that the proceeds full amount of such Incremental Commitments are being used to finance a Permitted Acquisitionis funded as Loans on such date) and all the related transactions, (A) no Event of Default under Sections 8.01(a) or (f) 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 result therefrom and (B) the representations and warranties of the Loan Parties set forth in this Agreement or any other Loan Document shall be true and correct in all material respects (or in all respects if any such representation and warranty is already qualified by materiality) on and as of the Incremental Facility Closing Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or in all respects if any such representation and warranty is already qualified by materiality) as of such earlier date; provided that, notwithstanding the foregoing requirements of this clause (i) or anything to the contrary in Section 5.02, if any Incremental Term Loan Commitments are established in connection with any Limited Condition Acquisition and the Lenders providing such Incremental CommitmentsTerm Loan Commitments so agree, the conditions to effectiveness of such Incremental Term Loan Commitments and to the funding of Incremental Term Loans thereunder set forth in this clause (i) and in Section 5.02 may be modified as agreed by the Borrower and such Lenders to limit such conditions to customary “SunGard” or “certain funds” conditionality;
(ii) subject to Section 1.04(a), on the Incremental Facility Closing Date and after giving pro forma effect to such Incremental CommitmentsCommitments (and assuming that the full amount of such Incremental Commitments is funded as Loans on such date) and all the related transactions, the conditions of Sections 4.02(i) and (ii) Borrower shall be satisfied in compliance with the financial covenants set forth in Section 8.06 on a Pro Forma Basis (in each case, calculated as of the last day of or for the Test Period then most recently ended and, in the case of any Incremental Term Loan Commitments established in connection with a Qualified Acquisition, such calculation shall give effect to any Leverage Increase Election that the Borrower intends to make (and, in accordance with Section 8.06(a), is permitted to make, it being understood that all references the Borrower shall then be obligated to “make such election) upon the date consummation of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental AmendmentQualified Acquisition); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effectaggregate Incremental Commitments for any Revolving Commitment Increase, determined on a Pro Forma Basis as any Term Loan Increase or any other Class of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 (or if less, the entire remaining amount available pursuant to clause (iv) below) and shall be in an increment of $1,000,000 (provided that or, in each case, such amount may be less than $20,000,000 if lesser amounts as agreed by the Administrative Agent);
(iv) after giving effect to the establishment of such amount represents all remaining availability under Incremental Commitments, the limit set forth in the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is of all Incremental Commitments effected pursuant to this Section 2.16 after the Restatement Effective Date shall not less than exceed $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 the next sentence)500,000,000;
(v) receipt by the aggregate amount Administrative Agent of such resolutions of the Incremental Term Loans board of directors of the Loan Parties and the Incremental Revolving Credit Commitments shall not exceed the sum opinions of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, counsel to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant Loan Parties as it may reasonably request relating to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as organizational authority for the establishment of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on and the last day of such periodenforceability thereof and any other matters relevant thereto, and, all in each case (x) with respect form and substance reasonably satisfactory to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00Administrative Agent; and
(vi) such other conditions as the Borrower, each Incremental Lender providing any such Incremental Commitments Commitment and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Amendment and Restatement Agreement (Concentrix 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 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 Acquisitionan Investment or an irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisitionan Investment or an irrevocable repayment, (x) the reference in repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations, in each case, subject to the reference to “Material Adverse Effect” provisions set forth herein in connection with Limited Condition Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Loans, Incremental Revolving Credit Commitments and/or Incremental Equivalent Debt permitted to be incurred at any time shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount Incremental Base Amount, minus all Incremental Term Loans, Incremental Revolving Credit Commitments and Incremental Equivalent Debt previously incurred in reliance of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans Loans, Incremental Equivalent First Lien Debt and all voluntary commitment reductions prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash for such Loans purchased or retired in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and Incremental Equivalent First Lien Debt and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans Loans, Incremental Equivalent First Lien Debt and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)) minus all Incremental Term Loans, Incremental Revolving Credit Commitments and Incremental Equivalent Debt previously incurred in reliance of this clause (B) plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansTest Period, does not exceed 3.75 3.00 to 1.001.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount,” and the amount under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount”);
(vi) [reserved]; and
(vivii) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Term Facility and any portion of any Incremental Revolving Credit Commitments, as applicable ,incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all Incremental Revolving Credit Commitments then being established are fully drawn and (b) the cash proceeds of any Incremental Loans shall be excluded from any calculation of “net” Indebtedness in determining whether such Incremental Term Facility or Incremental Revolving Credit Commitments, as applicable, can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included).
Appears in 1 contract
Sources: Credit Agreement (Apria, 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 thereof (the “Incremental Facility Closing Date”Date (which shall be no earlier than the date of such Incremental Amendment) specified therein of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) Section 3.03 shall be satisfied (it being understood that all references to “the date as of such Credit ExtensionDate” or similar language in such Section 4.02 3.03 shall be deemed to refer to the effective date of such Incremental AmendmentFacility Closing Date); provided that that, if the proceeds of such Incremental Commitments Commitment are being used to finance a Permitted AcquisitionLimited Condition Transaction, (x) the reference references in 4.02(iSection 3.03(a)(ii) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations customary “specified representations” of the Credit Parties (after giving effect to the Limited Condition Transaction) and (y) the reference references in Section 3.03(a)(iii) to “Material Adverse Effect” in the Specified Representations any Default or Event of Default shall be understood for this purpose to only refer to “Material Adverse Effect” or similar definition as defined in no Event of Default at the main time that the definitive transaction agreement governing for such Permitted Acquisition;
(iii) Limited Condition Transaction is entered into and, on the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as date of the Incremental Facility Closing Date incurrence thereof, both immediately before and the last day immediately after giving effect thereto, no Specified Event of the most recently ended Test Period, as if any Incremental Term Loans Default shall have occurred and be continuing or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loanswould result therefrom;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, 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 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 AcquisitionAcquisition or similar Investment, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitmentsat the time of entering into a definitive agreement in respect thereof, 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that (a) if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or similar Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, Acquisition and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Credit Agreement (iHeartMedia, 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 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 Acquisitionan Investment or an irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (for, solely with respect to the Borrower, Section 8.01(f) 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisitionan Investment or an irrevocable repayment, (x) the reference in repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations, in each case, subject to the reference to “Material Adverse Effect” provisions set forth herein in connection with Limited Condition Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Loans, Incremental Revolving Credit Commitments and/or Incremental Equivalent Debt permitted to be incurred at any time shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount Incremental Base Amount, minus all Incremental Term Loans, Incremental Revolving Credit Commitments and Incremental Equivalent Debt previously incurred in reliance of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans Loans, Incremental Equivalent First Lien Debt and all voluntary commitment reductions prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Commitments in respect of such Revolving Credit Loans prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash for such Loans purchased or retired in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and Incremental Equivalent First Lien Debt and all voluntary commitment prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans Loans, Incremental Equivalent First Lien Debt and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)) minus all Incremental Term Loans, Incremental Revolving Credit Commitments and Incremental Equivalent Debt previously incurred in reliance of this clause (B) plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansTest Period, does not exceed 3.75 3.00 to 1.001.00 (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount,” and the amount under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount”);
(vi) [reserved]; and
(vivii) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Credit Agreement (Apria, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Revolving Credit Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Revolving Credit Commitments are being used to finance a Permitted AcquisitionAcquisition or other similar Investment not prohibited by this Agreement, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Revolving Credit Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Revolving Credit Commitments;
(ii) after giving effect to such Incremental Revolving Credit Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Revolving Credit Commitments are being used to finance a Permitted AcquisitionAcquisition or other similar Investment not prohibited by this Agreement, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionAcquisition or Investment;
(iii) the Borrower Company and its Restricted Subsidiaries shall be in compliance with the covenant covenants set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 Revolving Credit Commitments had been outstanding on the last day of such fiscal quarter of the Borrower Company for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Revolving Credit Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) the greater or (x) $1,500,000,000 625,000,000 and (y) 100% of LTM Consolidated EBITDA (or prior to the termination of the Waiver Period, $450,000,000) less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments after the Amendment No. 4 Effective Date but prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions (i) of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or (ii) with the proceeds of Indebtedness), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Revolving Credit Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Revolving Credit Loans, does not exceed 3.75 the Applicable Consolidated First Lien Net Leverage Ratio Level (or if such Incremental Revolving Credit Commitments or Incremental Revolving Credit Loans are incurred in connection with a Permitted Acquisition or other similar Investment not prohibited by this Agreement, no greater than the greater of (1) the Applicable Consolidated First Lien Net Leverage Ratio Level and (2) the Consolidated First Lien Net Leverage Ratio immediately prior to 1.00the consummation of such Permitted Acquisition or Investment) (the amounts under the foregoing clauses (A) and (B), the “Fixed Incremental Amount” and, the amounts under the foregoing clause (C), the “Ratio Incremental Amount”); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisitionan 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 Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the covenant set forth conditions in Section 7.11 if such covenant is then clause (x) and in effect, determined on a Pro Forma Basis as clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicablethe case may be (provided, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewithfurther, andthat, in each the case of an acquisition or other Investment with a purchase price in excess of $100.0 million, the conditions contained in the proviso to clause (x) with respect to any Incremental Revolving Credit Commitmentno Event of Default under Section 8.01(1) or, assuming a borrowing of solely with respect to the maximum amount of Loans available thereunderBorrower, Section 8.01(6) and in clause (y) without netting the cash proceeds of any with respect to Specified Representations, in each case, shall be required whether or not requested by such Incremental LoansPersons, unless waived in accordance with Section 10.01);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $20,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $5,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of: (A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount plus (2) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (Aw) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at voluntary prepayments, redemptions or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments repurchases of Incremental Term Loans and voluntary commitment reductions Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Revolving Credit CommitmentsTerm Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental Term 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 each case, only to the extent such Incremental Term Loans and or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Credit Commitments were obtained pursuant 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 incurred in reliance on clause (CA)(1) below)above, plus (Cy) additional amounts so long as voluntary prepayments, redemption or repurchase of Second Lien Incremental Usage Amount Debt (including purchases of Second Lien Incremental Usage Amount Debt by Holdings, the Consolidated First Lien Net Leverage RatioBorrower or any of its Subsidiaries) and (z) voluntary prepayments, determined on a Pro Forma Basis as redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the last day prepayment, redemption or repurchase of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if 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 Revolving Credit CommitmentsUsage Amount Debt, in the case of this clause (z), so long as applicablesuch prepayment, available under such Incremental Commitments had been outstanding on the last day of such period, andredemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (x) with respect to any Incremental Revolving Credit Commitmentw), assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash and (z), from proceeds of any such Incremental Loanslong-term Indebtedness (other than revolving credit facilities), does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.plus
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 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, no Default or Event of Default under Sections 8.01(a) or (f) 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 Commitments and be continuing or would exist after giving effect to such Incremental CommitmentsLoans made pursuant thereto on the Incremental Facility Closing Date;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 4.02(i) shall be deemed to refer to the effective date of such Incremental Amendment); provided that if for purposes of satisfying Section 4.02(i), only the Specified Representations shall be required to be true and correct to the extent the proceeds of such Incremental Commitments Loans are being used to finance consummate a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant covenants set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test PeriodPeriod (or, if no Test Period cited in Section 7.11 has passed, the covenants in Section 7.11 for the first Test Period cited in such Section shall be satisfied as of the last four quarters ended), in each case, 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 15,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 15,000,000 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 $5,000,000 and shall be in an increment of $1,000,000 following clause (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencev);); and
(v) the aggregate amount of the Incremental Term Loans and incurred after the Incremental Revolving Credit Commitments Amendment No. 34 Effective Date shall not exceed the sum of (A) (1) $1,500,000,000 less 2350,000,000 minus (2) the aggregate principal amount of Indebtedness all secured Permitted Ratio Debt incurred by the Borrower and its Restricted Subsidiaries pursuant to Section 7.03(q7.03(s) at or prior to such time plus minus (3) the aggregate amount of incremental commitments that shall have become effective under the ABL Facility after the Amendment No. 34 Effective Date, (B) all voluntary prepayments of Term Loans and all voluntary permanent commitment reductions of Revolving Credit Commitments prior to or simultaneous the ABL Facility after the Amendment No. 34 Effective Date that are not, in each case, financed with the Incremental Facility Closing Date proceeds of any Indebtedness and (excluding voluntary prepayments C) an additional amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis Ratio is no more than 4.00 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters of the Borrower for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding determined on the last day of such periodapplicable Incremental Facility Closing Date, and, in each case (x) with respect after giving effect to any Incremental Revolving Credit Commitmentsuch incurrence on a Pro Forma Basis, assuming a borrowing and excluding from clause (xa) of the maximum amount definition of Loans available thereunder, and (y) without netting Consolidated First Lien Net Leverage Ratio the cash proceeds of any such Incremental Term Loans. (but, in the event that Incremental Term Loans (other than the Term B-4 Loans being incurred on the Amendment No. 4 Effective Date) are being incurred in reliance on Section 2.14(d)(v)(A) or any Permitted Ratio Debt is being incurred pursuant to clause (iv) of the definition of Permitted Ratio Debt at substantially the same time that Incremental Term Loans are being incurred pursuant to this Section 2.14(d)(v)(C), when calculating the Consolidated First Lien Net Leverage Ratio for purposes of this Section 2.14(d)(v)(C) to determine the permissibility of the incurrence of such Incremental Term Loans, does not exceed 3.75 it is understood and agreed that any Incremental Term Loans so incurred pursuant to 1.00; and
Section 2.14(d)(v)(A) at such time or any Permitted Ratio Debt incurred pursuant to clause (viiv) of the definition of Permitted Ratio Debt at such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent time shall agreebe excluded from Consolidated First Lien Net Debt).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Prestige Brands 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisitionan 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 Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the covenant set forth conditions in Section 7.11 if such covenant is then clause (x) and in effect, determined on a Pro Forma Basis as clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicablethe case may be (provided, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewithfurther, andthat, in each the case of an acquisition or other Investment with a purchase price in excess of $100.0 million, the conditions contained in the proviso to clause (x) with respect to any Incremental Revolving Credit Commitmentno Event of Default under Section 8.01(1) or, assuming a borrowing of solely with respect to the maximum amount of Loans available thereunderBorrower, Section 8.01(6) and in clause (y) without netting the cash proceeds of any with respect to Specified Representations, in each case, shall be required whether or not requested by such Incremental LoansPersons, unless waived in accordance with Section 10.01);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $20,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $5,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount plus (2) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (Aw) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at voluntary prepayments, redemptions or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments repurchases of Incremental Term Loans and voluntary commitment reductions Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Revolving Credit CommitmentsTerm Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental Term 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 each case, only to the extent such Incremental Term Loans and or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Credit Commitments were obtained pursuant 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 incurred in reliance on clause (CA)(1) below)above, plus (Cy) additional amounts so long as voluntary prepayments, redemption or repurchase of Second Lien Incremental Usage Amount Debt (including purchases of Second Lien Incremental Usage Amount Debt by Holdings, the Consolidated First Lien Net Leverage RatioBorrower or any of its Subsidiaries) and (z) voluntary prepayments, determined on a Pro Forma Basis as redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the last day prepayment, redemption or repurchase of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if 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 Revolving Credit CommitmentsUsage Amount Debt, in the case of this clause (z), so long as applicablesuch prepayment, available under such Incremental Commitments had been outstanding on the last day of such period, andredemption 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, plus (B) (x) with respect to in the case of any Incremental Revolving Credit CommitmentLoans or Incremental Commitments that effectively extend the Maturity Date of, assuming a borrowing or refinance, any Facility, an amount equal to the portion of the maximum amount of Facility to be replaced with (or refinanced by) such Incremental Loans available thereunder, or Incremental Commitments and (y) without netting in the cash proceeds case of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Loans or Incremental Commitments and that effectively replace any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the Administrative Agent shall agree.portion of the relevant terminated or cancelled Commitment or Loan, plus
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 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 the Incremental Base Amount less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and 7.03(w) at or prior to such time plus (B) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 4.25 to 1.001.00 (or the Consolidated First Lien Net Leverage Ratio determined on a Pro Forma Basis does not exceed the Consolidated First Lien Net Leverage Ratio immediately prior thereto) (excluding, for purposes of calculating such ratio under this clause (y), Revolving Credit Loans borrowed for seasonal working capital requirements in an amount not to exceed $150,000,000) (clauses (A), (B) and (C), the “Available Incremental Amount”); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the amounts under clause (C) above prior to the amounts under clauses (A) and/or (B) above or any combination thereof, and any portion of any Incremental Facility incurred in reliance on clauses (A) and/or (B) above shall be reclassified, as the Borrower may elect from time to time, as incurred under clause (C) above if the Borrower meets the applicable ratio at such time on a Pro Forma Basis, and if any applicable ratio under clause (C) above would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Facility, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower.
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 thereof 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) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) exists or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or (y) if otherwiseOther 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 have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Credit Extension” Limited Condition Transaction and no Event of Default under Section 8.01(a) or similar language in such Section 4.02 8.01(f) shall be deemed to refer to the effective date of exist on such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations Facility Closing Date and (y) the reference representations and warranties of the Loan Parties contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (provided that, to “Material Adverse Effect” 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 that the 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 Other Notes, as the case may be; provided, further, that in the Specified Representations case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, if required, only certain customary specified representations (conformed as necessary for such acquisition, investment or other transaction) shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined true and correct in the main transaction agreement governing such Permitted Acquisitionall material respects;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $20,000,000 500,000 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 the next sentenceclause (iii) below) and each Incremental Revolving Credit 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 $5,000,000 500,000 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 the next sentenceclause (iii) below);; and
(viii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and the Incremental Revolving Credit Commitments Other Notes shall not exceed the sum of (A) $1,500,000,000 less [reserved], plus (B) an amount equal to the aggregate principal 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(q7.03(m) at or prior to such time clause (i)(A) of the definition of “Permitted Ratio Debt” plus (BC) all voluntary prepayments an unlimited amount so long as, in the case of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to this clause (C) below)only, plus such amount at such time could be incurred without causing (Cx) additional amounts so long as 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 First Lien Senior Secured Net Leverage Ratio, determined Ratio (calculated on a Pro Forma Basis as Basis) to exceed 4.50:1.00, (y) in the case of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding Indebtedness secured by Liens on the last day 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 such periodunsecured Indebtedness, andthe Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, in each case (x) with respect case, after giving effect to any Incremental Revolving Credit Commitmentacquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepayment of Indebtedness in connection therewith), and assuming a borrowing for purposes of this calculation that (i) the maximum full committed amount of Loans available thereunder, 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 (yii) without netting the cash proceeds of any such Incremental LoansFacility or other Indebtedness permitted hereunder then being incurred shall not be netted from Consolidated Total Net Debt, does not 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 3.75 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 1.00; and
the extent of such amounts incurred in reliance on clause (viA) and/or clause (B) (solely for the purpose of determining whether such other conditions 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, each any Incremental Lender providing Facility or other Indebtedness permitted hereunder may be incurred under 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 automatically reclassified (unless otherwise elected by the Lead Borrower) as incurred under clause (C) if the Borrowers meet the applicable leverage ratio under clause (C) at such Incremental Commitments and the Administrative Agent shall agreetime on a Pro Forma Basis).
Appears in 1 contract
Sources: 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section SectionSection 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in SectionSection 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSectionSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSectionSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 the Incremental Base Amount less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and 7.03(w) at or prior to such time plus (B) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.001.00 (excluding, for purposes of calculating such ratio under this clause (y), Revolving Credit Loans borrowed for seasonal working capital requirements in an amount not to exceed $75,000,000); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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 AcquisitionAcquisition or other Investment permitted hereunder, no Event of Default under Sections 8.01(a), 8.01(f) or (f8.01(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 CommitmentsCommitments and except as set forth in clause (i) above, the conditions of Sections 4.02(i) and (ii4.02(ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that that, if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or other Investment permitted hereunder, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall shall, to the extent agreed by such Incremental Lenders, refer to the accuracy of the representations customary “specified representations” and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisitionspecified acquisition representations”;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments incurred after the Fourth Amendment Effective Date shall not exceed the sum of (A) $1,500,000,000 600,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q7.03(q)(A) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as (when aggregated with amounts incurred at or prior to such time pursuant to Section 7.03(q)(B)) the Consolidated First Lien Net Leverage Senior Loan-to-Value Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableTest 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 each case case, (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLoans and (z) including the aggregate amount of Incremental Commitments concurrently established under clause (A) (unless previously repaid), does not exceed 3.75 to 1.0045.0%; and
(vi) such other conditions as to the Borrowerextent reasonably requested by the Administrative Agent, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreehave 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 Collateral Documents as may be reasonably requested by the Administrative Agent in order to ensure that such Incremental Commitment is provided with the benefit of the applicable Loan Documents.
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 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, Investment, or Limited Condition Transaction, no Event of Default under Sections 8.01(a) or (f) or, solely with respect to the Borrower, Section 8.01(f), 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that that, for the avoidance of doubt and in accordance with Section 4.02, if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) Investment, or Limited Condition Transaction, there shall be no requirement to satisfy any or all conditions of Section 4.02, instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations, in each case, subject to the reference to “Material Adverse Effect” provisions set forth herein in connection with Limited Condition Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 2.14(d)(v)) and each Incremental DDTL Commitment and Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in increments of $1,000,000 (or in an amount that represents all remaining availability under the next sentencelimit set forth in Section 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans Loans, the Incremental DDTL Commitments and the Incremental Revolving Credit Commitments incurred after the Amendment No. 2 Effective Date shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) (1) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans, Incremental Equivalent First Lien Debt or other Indebtedness permitted pursuant to Section 7.03, in each case, secured on a pari passu basis with the Initial Term Loans and or any Indebtedness initially incurred in reliance of the Incremental Base Amount, (2) all voluntary commitment reductions terminations of Revolving Credit Commitments and other revolving credit commitments hereunder or permitted under Section 7.03 and secured on a pari passu basis with the Initial Term Loans (accompanied by corresponding voluntary repayments of Revolving Credit Loans or other revolving loans to the extent in excess of the remaining Revolving Credit Commitments or other revolving credit commitments) and (3) all voluntary terminations of unused DDTL Commitments or other delayed draw term loan commitments permitted under Section 7.03 and secured on a pari passu basis with the Initial Term Loans and any DDTL Commitments or other delayed draw term loan commitments initially incurred in reliance of the Incremental Base Amount (to the extent such DDTL Commitments or other delayed draw term commitments were initially incurred under an incurrence test assuming they were fully drawn) prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” in accordance with procedures of the type described in Section 2.05(a)(v) or (y) other transactions pursuant to Section 10.07(l), in each case of clauses (x) and (y), which shall be credited to the extent of the principal or face amount of such Loans purchased or retired in connection with such “Dutch Auction” or such other transactions) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and such Indebtedness or voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause funded with a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period applicable Test Period, does not exceed the greater of four consecutive fiscal quarters for which financial statements are internally available(x) 5.25 to 1.00 and (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such periodthe applicable Test Period, and, in each case does not exceed the greater of (x) with respect 6.25 to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, 1.00 and (y) without netting in the cash proceeds case of any such Incremental LoansIndebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Secured Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment and (3) if such Indebtedness is unsecured (or not secured by any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the applicable Test Period, does not exceed 3.75 the greater of (x) 6.75 to 1.001.00 and (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the applicable Test Period, is not less than the lesser of (x) 2.00 to 1.00 and (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount,” and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less, with respect to the Free and Clear Incremental Amount, the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) or Section 7.03(w) at or prior to such time in reliance of such Free and Clear Incremental Amount, are herein referred to as the “Available Incremental Amount”)); and
(vi) such other conditions as the Borrower, Borrower and each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Commitments incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Commitments, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all Incremental Commitments then being established are fully drawn (provided, that in the case of any Incremental DDTL Commitment or any Incremental Equivalent Debt or any other facility then being established, in each case, in the form of delayed draw term loan commitments, the Borrower may elect to test any such ratios either (i) at the time such commitments are established assuming the commitments in respect thereof have been fully drawn or (ii) at the time of each drawing or incurrence of such delayed draw term commitments, based on the amount drawn at such time), (b) the cash proceeds of any Incremental Commitments shall be excluded from any calculation of “net” Indebtedness in determining whether such Incremental Commitments can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility and any other revolving facilities included in such calculation) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, and/or any incurrence of Indebtedness under the Revolving Credit Facility or any other revolving facility that is used to finance working capital needs of the Borrower and its Restricted Subsidiaries (as reasonably determined by the Borrower) shall, in each case, be disregarded.
Appears in 1 contract
Sources: Credit Agreement (Legence 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant covenants set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 300,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions (i) of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or (ii) with the proceeds of Indebtedness), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 0.25 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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, Investment, or Limited Condition Transaction, no Event of Default under Sections 8.01(a) or (f) or, solely with respect to the Borrower, Section 8.01(f), 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, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that that, for the avoidance of doubt and in accordance with Section 4.02, if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) Investment, or Limited Condition Transaction, there shall be no requirement to satisfy any or all conditions of Section 4.02, instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations, in each case, subject to the reference to “Material Adverse Effect” provisions set forth herein in connection with Limited Condition Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment increments 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 2.14(d)(v)) and each Incremental DDTL Commitment and Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in increments of $1,000,000 (or in an amount that represents all remaining availability under the next sentencelimit set forth in Section 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans Loans, the Incremental DDTL Commitments and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) (1) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans, Incremental Equivalent First Lien Debt or other Indebtedness permitted pursuant to Section 7.03, in each case, secured on a pari passu basis with the Initial Term Loans and or any Indebtedness initially incurred in reliance of the Incremental Base Amount, (2) all voluntary commitment reductions terminations of Revolving Credit Commitments and other revolving credit commitments hereunder or permitted under Section 7.03 and secured on a pari passu basis with the Initial Term Loans (accompanied by corresponding voluntary repayments of Revolving Credit Loans or other revolving loans to the extent in excess of the remaining Revolving Credit Commitments or other revolving credit commitments) and (3) all voluntary terminations of unused DDTL Commitments or other delayed draw term loan commitments permitted under Section 7.03 and secured on a pari passu basis with the Initial Term Loans and any DDTL Commitments or other delayed draw term loan commitments initially incurred in reliance of the Incremental Base Amount (to the extent such DDTL Commitments or other delayed draw term commitments were initially incurred under an incurrence test assuming they were fully drawn) prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” in accordance with procedures of the type described in Section 2.05(a)(v) or (y) other transactions pursuant to Section 10.07(l), in each case of clauses (x) and (y), which shall be credited to the extent of the principal or face amount of such Loans purchased or retired in connection with such “Dutch Auction” or such other transactions) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and such Indebtedness or voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause funded with a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans)), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period applicable Test Period, does not exceed the greater of four consecutive fiscal quarters for which financial statements are internally available(x) 5.25 to 1.00 and (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such periodthe applicable Test Period, and, in each case does not exceed the greater of (x) with respect 6.25 to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, 1.00 and (y) without netting in the cash proceeds case of any such Incremental LoansIndebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Secured Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment and (3) if such Indebtedness is unsecured (or not secured by any portion of the Collateral), either (I) the Consolidated Total Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the applicable Test Period, does not exceed 3.75 the greater of (x) 6.75 to 1.001.00 and (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Total Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment or (II) the Consolidated Interest Coverage Ratio, determined on a Pro Forma Basis as of the last day of the applicable Test Period, is not less than the lesser of (x) 2.00 to 1.00 and (y) in the case of any such Indebtedness being applied to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated Interest Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Free and Clear Incremental Amount,” and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less, with respect to the Free and Clear Incremental Amount, the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) or Section 7.03(w) at or prior to such time in reliance of such Free and Clear Incremental Amount, are herein referred to as the “Available Incremental Amount”)); and
and (vi) such other conditions as the Borrower, Borrower and each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Commitments incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Commitments, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) it shall be assumed that all Incremental Commitments then being established are fully drawn (provided, that in the case of any Incremental DDTL Commitment or any Incremental Equivalent Debt or any other facility then being established, in each case, in the form of delayed draw term loan commitments, the Borrower may elect to test any such ratios either (i) at the time such commitments are established assuming the commitments in respect thereof have been fully drawn or (ii) at the time of each drawing or incurrence of such delayed draw term commitments, based on the amount drawn at such time), (b) the cash proceeds of any Incremental Commitments shall be excluded from any calculation of “net” Indebtedness in determining whether such Incremental Commitments can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (c) the incurrence (including by assumption or guarantee) of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility and any other revolving facilities included in such calculation) prior to, or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, and/or any incurrence of Indebtedness under the Revolving Credit Facility or any other revolving facility that is used to finance working capital needs of the Borrower and its Restricted Subsidiaries (as reasonably determined by the Borrower) shall, in each case, be disregarded.
Appears in 1 contract
Sources: Credit Agreement (Legence Corp.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject only to the satisfaction on the date thereof of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments Indebtedness are being used to finance a Permitted AcquisitionAcquisition or Investment not prohibited hereunder, no Event of Default under Sections Section 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsIndebtedness, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsIndebtedness;
(ii) unless otherwise agreed to by the Administrative Agent and the applicable Incremental Lenders, after giving effect to such Indebtedness on the Incremental CommitmentsFacility Closing Date, the conditions representations and warranties of Sections 4.02(i) each Loan Party set forth in Article 5 and (ii) in each other Loan Document shall be satisfied (it being understood true and correct in all material respects on and as of the applicable 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 which case they shall be true and correct in all material respects as of such earlier date; provided that all references any representation and warranty that is qualified as to “the date of such Credit Extensionmateriality,” “Material Adverse Effect” or similar language in such Section 4.02 shall be deemed true and correct (after giving effect to refer any qualification therein) in all respects on such respective dates; provided further that to the effective date of such Incremental Amendment); provided that if extent the proceeds of such the Incremental Commitments Facility are being used to finance a Permitted Acquisition, Acquisition (xi) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the only representations and warranties that would constitute will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations Representations, (ii) and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition);
(iii) the Borrower and its Restricted Subsidiaries each Incremental Term Commitment shall be in compliance with an aggregate principal amount that is not less than $2,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $2,000,000 if such amount represents all remaining availability under the covenant limit set forth in Section 7.11 clause (iv) below) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $2,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $2,000,000 if such covenant is then amount represents all remaining availability under the limit set forth in effectclause (iv) below); and
(iv) the aggregate amount of the Incremental Term Loans, the Incremental Revolving Credit Commitments and the Incremental Equivalent Debt shall not exceed, an amount equal to (A) $50,000,000, plus (B) after the Closing Date, up to an additional amount of Incremental Term Loans, Incremental Revolving Credit Commitments and/or Incremental Equivalent Debt so long as in the case of this clause (B) only (x) with respect to any Incremental Facility secured by Liens on the Collateral that are pari passu to the Liens securing the Obligations, the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09 and without netting the cash proceeds of any such Incremental Facility being so incurred for the purposes of such calculation) is no more than the Closing Date First Lien Net Leverage Ratio, (y) with respect to any Incremental Facility secured by Liens on Collateral that are junior to the Liens on the Collateral securing the Obligations, the Consolidated Senior Secured Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09 and without netting the cash proceeds of any such Incremental Facility being so incurred for the purposes of such calculation) is no more than 4.00:1.00 or (z) with respect to any unsecured Incremental Facility, the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09 and without netting the cash proceeds of any such Incremental Facility being so incurred for the purposes of such calculation) is no more than 4.75:1.00, in each case, calculated as of the Incremental Facility Closing Date and the last day of the most recently ended Test PeriodPeriod for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding determined on the last day of applicable Incremental Facility Closing Date, after giving effect to any such fiscal quarter incurrence or issuance (or, at the option of the Borrower for testing compliance therewithBorrower, on the date of establishment of the commitments in respect thereof assuming the full amounts of all such additional amounts is drawn and outstanding) on a Pro Forma Basis, and, in each case (x) case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and ; plus (yC) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed equal to the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (Bi) all voluntary prepayments or repurchases of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained made pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.to
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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 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, no Event of Default under Sections Section 8.01(a) or (fSection 8.01(f) 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, the conditions of Sections Section 4.02(i) and (iiiii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) Acquisition the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) required by the reference to “Material Adverse Effect” in lenders providing the Specified Representations shall be understood financing for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than (w) $20,000,000 and shall be in an increment 10,000,000, or a whole multiple of $1,000,000 in excess thereof in the case of Incremental Term Commitments denominated in Dollars (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence), (x) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 1,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
) or (vz) in increments to be agreed by the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments relevant Borrower and the Administrative Agent shall agree.in the case of Incremental Term Commitments denominated in any other Available Currency;
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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 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, no Event of Default under Sections Section 8.01(a) or (f) 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, (a) the conditions representations and warranties of Sections 4.02(i) each Loan Party set forth in Article V and (ii) in each other Loan Document shall be satisfied true and correct in all material respects (it being understood except that all references any representation and warranty that is qualified as to “the date of such Credit Extensionmateriality” or similar language in such Section 4.02 “Material Adverse Effect” shall be deemed to refer to true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment)Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (b) the Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof; provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(iclause (a) above to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10.0 million and shall be in an increment of $1,000,000 1.0 million in excess thereof (provided that such amount may be less than $20,000,000 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 $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10.0 million if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 150.0 million plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Senior Secured Leverage Ratio, determined on a Pro Forma Basis pro forma basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting excluding the cash proceeds of any such Incremental LoansLoans and as if any Permitted Acquisition or Investment to be made with the proceeds of such Incremental Loans had been consummated, does not exceed 3.75 3.50:1.00 plus (C) all voluntary prepayments of the Facility made prior to 1.00the Incremental Facility Closing Date that are not financed with the incurrence of Refinancing Debt; provided that (x) the Borrower may elect to use clause (B) or (C) prior to clause (A), and if clauses (A), (B) and (C) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B) and if only clauses (A) and (C) are available, the Borrower will be deemed to have elected clause (C), and (y) in the case of any transaction that provides for the incurrence of Incremental Loans under clause (B) and under clause (A) and/or clause (C), compliance with the above applicable leverage ratio shall be determined for purposes of such clause (B) by giving the single transaction pro forma effect but excluding in such determination the aggregate amount of indebtedness (and deemed indebtedness) from any such incurrence and increase utilizing such clause (A) or (C); and
(vi) such other 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 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, no Default or Event of Default under Sections 8.01(a) or (f) 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 Term Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance an acquisition permitted by this Agreement, assuming a borrowing this clause (ii) (other than with respect to the Specified Representations as they relate to the target of such acquisition (conformed as reasonably necessary for such acquisition)) may be waived or omitted by Incremental Term Lenders holding more than 50% of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any aggregate Incremental Term Commitments under such Incremental LoansAmendment;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencethis Section 2.14(d));
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 35,000,000 minus (x) the aggregate principal amount of Indebtedness Incremental Equivalent Debt incurred pursuant to in reliance on Section 7.03(q7.03(k)(A)(i)(x) at or prior to such time and (y) the Incremental First Lien Usage Amount plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments at its option, additional amounts of Incremental Term Loans and voluntary commitment reductions so long as, in the case of Incremental Revolving Credit Commitmentsthis clause (B) only, with respect to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as secured by the Consolidated First Lien Net Leverage Ratio, determined Collateral on a Pro Forma Basis pari passu or junior basis to the Initial Term Loans, the Total Leverage Ratio is no more than 6.00 to 1.00, in each case as of the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableended, as if after giving effect to any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case case, (x) with respect to any Incremental Revolving Credit CommitmentCommitments under the First Lien Credit Agreement (and as defined thereunder), assuming a borrowing of the maximum amount of Loans available thereunder, thereunder and (y) without netting the cash proceeds of any from such Incremental Loans, does Term Loans shall not exceed 3.75 be netted against Indebtedness for purposes of the calculation of Total Leverage Ratio related to 1.00such incurrence; and
(viv) such other conditions as the Borrower, each Incremental Term Lender providing such Incremental Term Commitments and the Administrative Agent shall agree.
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Effectiveness of Incremental Amendment. The TheExcept as set forth in the required documentation therefore, the effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject only to the satisfaction on the date thereof of such Incremental Amendment (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments Indebtedness are being used to finance a Permitted AcquisitionAcquisition or Investment not prohibited hereunder, no Event of Default under Sections Section 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsIndebtedness, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsIndebtedness;
(ii) unless otherwise agreed to by the Administrative Agent and the applicable Incremental Lenders, after giving effect to such Indebtedness on the Incremental CommitmentsFacility Closing Date, the conditions representations and warranties of Sections 4.02(i) each Loan Party set forth in Article 5 and (ii) in each other Loan Document shall be satisfied (it being understood true and correct in all material respects on and as of the applicable 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 which case they shall be true and correct in all material respects as of such earlier date; provided that all references any representation and warranty that is qualified as to “the date of such Credit Extensionmateriality,” “Material Adverse Effect” or similar language in such Section 4.02 shall be deemed true and correct (after giving effect to refer any qualification therein) in all respects on such respective dates; provided further that to the effective date of such Incremental Amendment); provided that if extent the proceeds of such the Incremental Commitments Facility are being used to finance a Permitted Acquisition, Acquisition (xi) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the only representations and warranties that would constitute will be required to be true and correct in all material respects as of the applicable Incremental Facility Closing Date shall be the Specified Representations Representations, (ii) and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition);
(iii) the Borrower and its Restricted Subsidiaries each Incremental Term Commitment shall be in compliance with an aggregate principal amount that is not less than $2,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $2,000,000 if such amount represents all remaining availability under the covenant limit set forth in Section 7.11 clause (iv) below); and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $2,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $2,000,000 if such covenant is then amount represents all remaining availability under the limit set forth in effectclause (iv) below); and
(iv) the aggregate amount of the Incremental Term Loans, the Incremental Revolving Credit Commitments and the Incremental Equivalent Debt shall not exceed, an amount equal to (A) [Reserved],24 plus (B) after the Closing Date, up to an additional amount of Incremental Term Loans, Incremental Revolving Credit Commitments and/or Incremental Equivalent Debt so long as in the case of this clause (B) only (x) with respect to any Incremental Facility secured by Liens on the Collateral that are pari passu to the Liens securing the Obligations, the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09 and without netting the cash proceeds of any such Incremental Facility being so incurred for the purposes of such calculation) is no more than the Closing Date First Lien Net Leverage Ratio, (y) with respect to any Incremental Facility secured by Liens on Collateral that are junior to the Liens on the Collateral securing the Obligations, the Consolidated Senior Secured Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09 and without netting the cash proceeds of any such Incremental Facility being so incurred for the purposes of such calculation) is no more than 4.00:1.00 or (z) with respect to any unsecured Incremental Facility, the Consolidated Total Net Leverage Ratio (determined on a Pro Forma Basis in accordance with Section 1.09 and without netting the cash proceeds of any such Incremental Facility being so incurred for the purposes of such calculation) is no more than 4.75:1.00, in each case, 3.20:1.00 calculated as of the Incremental Facility Closing Date and the last day of the most recently ended Test PeriodPeriod for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding determined on the last day of applicable Incremental Facility Closing Date, after giving effect to any such fiscal quarter incurrence or issuance (or, at the option of the Borrower for testing compliance therewithBorrower, on the date of establishment of the commitments in respect thereof assuming the full amounts of all such additional amounts is drawn and outstanding) on a Pro Forma Basis, and, in each case (x) case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and ;] plus (yC) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed equal to the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (Bi) all voluntary prepayments or repurchases of Term Loans made pursuant to Section 2.05(a) or Section 10.07(l)(x), and (ii) all permanent voluntary commitment reductions or terminations of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were (other than Incremental Revolving Credit Commitments obtained in 24 First Amendment reliance on preceding clause (B)) pursuant to Section 2.06(a) except to the extent, in each case, financed with long term Indebtedness (other than Incremental Loans) (it being understood that (I) the Borrower shall be deemed to have used amounts under clause (C) belowprior to utilization of amounts under clause (A) or (B), plus and the Borrower shall be deemed to have used amounts under clause (B) (to the extent compliant therewith) prior to utilization of amounts under clause (A) and (C), and (II) Loans may be incurred under both clauses (A) and/or (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case and clause (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunderB), and (y) without netting the cash proceeds of from any such Incremental Loans, does not exceed 3.75 to 1.00; and
incurrence may be utilized in a single transaction by first calculating the incurrence under clause (viB) such other conditions as above and then calculating the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeincurrence under clause (A) and/or (C) above).
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 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, no Event of Default under Sections 8.01(a) or (f) 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, the following conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extensionborrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); ) (provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionLimited Condition Transaction, there shall be no requirement to satisfy any or all such conditions described in clauses (A) and (B) below except that (I) the requirement that no Payment or Bankruptcy Default with respect to the Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments shall not be omitted or waived without the consent of the Required Lenders, (xII) the reference in 4.02(i) if such proceeds are being used to finance a Limited Condition Transaction that is an Acquisition or other Investment, the accuracy of the representations and warranties described in clause (A) shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Limited Condition Transaction and the acquired business or assets), (yIII) the in connection with a Limited Condition Transaction that is an Acquisition or other Investment, any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;Limited Condition Transaction and (IV) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders):
(iiiA) the Borrower representations and its Restricted Subsidiaries shall be in compliance with the covenant warranties of each Loan Party set forth in Section 7.11 if such covenant 4 and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is then qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in effect, determined all respects as so qualified) on a Pro Forma Basis and as of the effective date of such Incremental Facility Closing Date Amendment with the same effect as though made on and as of such date, except to the last day extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified); and
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;therefrom.
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viii) the aggregate amount of the Incremental Term Loans Loans, together with the aggregate amount of any Incremental Commitments and the any Incremental Revolving Credit Commitments Equivalent Debt, shall not exceed the sum of (A) the greater of (x) $1,500,000,000 less 400,000,000 and (y) 100% of EBITDA for the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or four fiscal quarters ended immediately prior to such time date for which internal financial statements are available, plus (B) all the amount of any voluntary prepayments prepayment of Term any Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous any Incremental Equivalent Debt, in each case that is secured pari passu with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below)Initial Loans, plus (C) additional unlimited amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as after giving effect to the Consolidated First Lien incurrence of such Incremental Facility and any Incremental Equivalent Debt, any acquisition, investment or redemption or repayment of Indebtedness consummated substantially concurrently therewith and such other applicable pro forma adjustment events, the Net Leverage RatioRatio of the Borrower, determined on a Pro Forma Basis pro forma basis as of the last day of the most recently ended period of four (4) consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans delivered or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect required to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansbe delivered pursuant to Section 5.1, does not exceed 3.75 2.50 to 1.001.00 (as demonstrated by a certificate of a financial officer that is an Authorized Person of the Par Borrower delivered to the Agent) (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Base Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Base Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to this Section 2.17 and Incremental Equivalent Debt at or prior to such time, are herein referred to as the “Incremental Availability Amount”)); and
(viiv) such other conditions as the BorrowerBorrowers, each the Incremental Lender Lenders providing such Incremental Commitments and the Administrative Agent shall agree. The Borrowers may elect to use the Incurrence-Based Incremental Amount prior to the Base Incremental Amount or any combination thereof. If the Borrowers or any other Loan Party incurs indebtedness under the Base Incremental Amount (and any other fixed debt basket) on the same date that it incurs Indebtedness under the Incurrence-Based Incremental Amount (or any other ratio debt incurrence basket), then for purposes of determining pro forma compliance and any testing of any ratios with respect to the amounts incurred under the Incurrence-Based Incremental Amount (or other ratio indebtedness incurrence basket) will be calculated without regard to any incurrence under the Base Incremental Amount (and any fixed debt basket). For the avoidance of doubt, each Incremental Facility shall be deemed incurred first under the Incurrence-Based Incremental Amount with the balance incurred under any remaining Base Incremental Amount. For purposes of determining pro forma compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, the cash proceeds of any Incremental Facility or Incremental Equivalent Debt shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other pro forma adjustments shall be included).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Par Pacific 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:conditions (subject to Section 1.07(10)):
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisitionan 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 Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the covenant set forth conditions in Section 7.11 if such covenant is then clause (x) and in effect, determined on a Pro Forma Basis as clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicablethe case may be (provided, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewithfurther, andthat, in each the case of an acquisition or other Investment with a purchase price in excess of $100.0 million, the conditions contained in the proviso to clause (x) with respect to any Incremental Revolving Credit Commitmentno Event of Default under Section 8.01(1) or, assuming a borrowing of solely with respect to the maximum amount of Loans available thereunderBorrower, Section 8.01(6) and in clause (y) without netting the cash proceeds of any with respect to Specified Representations, in each case, shall be required whether or not requested by such Incremental LoansPersons, unless waived in accordance with Section 10.01);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $20,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $5,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of: (CA) below)(1) $500.0 million plus any General Debt Basket Reallocated Amount less the Second Lien Incremental Usage Amount (for the avoidance of doubt, plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis it being agreed that as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableThird Amendment Effective Date, as if any no Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had have been outstanding on the last day of such period, and, in each case incurred pursuant to this clause (x1)) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and plus (y2) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.the
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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Commitments are being used subject to finance a Permitted AcquisitionSection 1.09(f), no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing exist 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 Term Commitments;
(ii) after giving effect subject to such Incremental CommitmentsSection 1.09(f), the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article IV and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations (i) any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates and (ii) in the main transaction agreement governing case of the representation and warranty under Section 4.05(b), a Material Adverse Effect that previously existed but that has ceased to exist on the date that such Permitted Acquisitionrepresentation and warranty is being made, shall not result in such representation and warranty being untrue;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencebelow);
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Available Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00Amount; and
(viv) (A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (1) customary 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 (2) 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 are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrowers and the Lenders providing such Incremental Term Commitments and the Administrative Agent shall may agree.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental AmendmentIncrementalAmendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof datethereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(iconditions:(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted aPermitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of anyIndebtedness, no Event of Default under Sections 8.01(a) or or, solely with respect to the Borrower,Section 8.01 (f) shall have occurred and be continuing or would exist after giving effect to such Incremental suchIncremental Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing becontinuing or would exist after giving effect to such Incremental Commitments;
(iiCommitments;(ii) after giving effect to such Incremental Commitments, the conditions of Sections Section 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit ExtensionCreditExtension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of dateof such Incremental Amendment); provided that if the proceeds of such Incremental Commitments IncrementalCommitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocablerepayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfyany or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties andwarranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effectconstituteSpecified Representations; provided, determined on a Pro Forma Basis as of further, that the Incremental Facility Closing Date and Lenders providing suchIncremental Commitments may waive the last day requirement regarding the accuracy 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (xSpecifiedRepresentations;(iii) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv[reserved];(iv) each Incremental Term Commitment shall be in an aggregate principal amount that amountthat is not less than $20,000,000 10,000,000 and shall be in an increment increments of $1,000,000 (provided that such amount suchamount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the underthe limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall Commitmentshall 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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.in133
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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 590,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time timethe Incremental Base Amount plus (B) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 4.75 to 1.00; and
and (vithe amounts under the foregoing clauses (A) such other conditions and (B) are herein referred to as the Borrower“Free and Clear Incremental Amount”, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) or Section 7.03(u) at or prior to such time, are herein referred to as the “Available Incremental Amount”)); and
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 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, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental CommitmentsCommitments (provided that, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect with respect to such any Incremental Commitments;
(ii) after giving effect to such Incremental CommitmentsAmendment in connection with a Limited Condition Transaction, the conditions of Sections 4.02(irequirement 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 or any other Loan Document shall be satisfied (it being understood that true and correct in all references to “material respects on and as of the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer Incremental Amendment (provided that, to the effective date of extent that such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall specifically refer to the accuracy an earlier date, they shall be true and correct in all material respects as of the representations such earlier date and warranties any representation and warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that in connection with a Limited Condition Transaction, the covenant set forth conditions in Section 7.11 if such covenant is then clause (i) and in effect, determined on a Pro Forma Basis as clause (ii) shall (x) only be required to the extent requested by the non-Affiliated Lenders providing more than 50% of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, may be and (y) without netting shall be tested (if applicable) solely on the cash proceeds of any such Incremental Loansapplicable LCT Test Date as selected by the Borrower pursuant to Section 1.07(11);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $20,000,000 5,000,000 (or such lesser amount) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (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 the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause shall not, together with the 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) $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), plus 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) additional amounts 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 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 Consolidated case of this clause (iii) only (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, determined on a Pro Forma Basis as of Ratio for the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if calculated on a pro forma basis after giving effect to any Incremental Term Loans such incurrence does not exceed 2.75 to 1.00 (including in connection with an acquisition or Incremental Revolving Credit Commitments, as applicable, available other Investment permitted under such Incremental Commitments had been outstanding on the last day of such period, and, in each case this Agreement) and (xB) 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 Credit CommitmentCommitments, assuming a borrowing of the maximum amount of Loans available thereunder, such Incremental Revolving Commitments under this clause (I) are fully drawn and (yii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds of 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 LoansLoans 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, (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; and1.00 (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
(viIII) 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 conditions as 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, each then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Lender providing Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the 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 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 Commitments Delayed Draw Term Loan Commitment (and any associated Incremental Delayed Draw Term Loan) or Incremental Equivalent Debt in the Administrative Agent form of a delayed draw term loan or note), such Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall agreebe 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 Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall be determined as of the 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, Amendment and the Incremental Commitments thereunder, availability of any initial credit extensions thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) no Event of Default has occurred and is continuing or would exist immediately after giving effect to such Incremental Commitments; provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisitionan Acquisition permitted by Section 7.5 or an Investment permitted by Section 7.4, to the extent agreed to by the Incremental Lenders providing the applicable Incremental Commitments, the requirement pursuant to this clause (i) shall be that no Event of Default under Sections 8.01(a) or Section 8.1(a), (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitmentsb), (h), or (yi) if otherwise, no Event of Default shall have has occurred and be is continuing or would shall exist immediately after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions representations and warranties of Sections 4.02(i) the Loan Parties and (ii) the Liberty Subsidiaries set forth in the Loan Documents shall be satisfied (it being understood that true and correct in all references to “material respects on and as of the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer Incremental Amendment (except to the effective date of extent that such Incremental Amendment); provided that if the proceeds of representations and warranties relate to an earlier date, in which case such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer be true and correct in all material respects as of such earlier date and that any representation and warranty that is qualified as to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “materiality” or “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to true and correct in all respects without further qualification); provided that customary “Material Adverse EffectSungard” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments“certain funds” conditionality shall, to the extent agreed by the Incremental Lenders providing such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect apply to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 Amendment entered into in order to 1.00finance Acquisitions permitted by Section 7.5 or Investments permitted by Section 7.4; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisitionan 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 Sections 8.01(aSection 8.01(1) or, solely with respect to Holdings or (fany Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrowers contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to materiality”, “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance all respects on such respective dates); provided that, in connection with an acquisition or other Investment permitted hereunder, the covenant set forth condition in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of this clause (y) shall only be required to the Incremental Facility Closing Date and extent requested by the last day of Persons providing the most recently ended Test Period, as if any applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Credit Loans and Incremental Revolving Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, andcase may be (provided further that, in each the case of any such acquisition or other Investment, the condition contained in this clause (xy) with respect to any Incremental Revolving Credit CommitmentSpecified Representations shall be required whether or not requested by such Persons, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansunless waived in accordance with Section 10.01);
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $20,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $5,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not at any time, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (A) $1,500,000,000 less (1) the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) Incremental Starter Amount in effect at or prior to such time plus (B2) all the aggregate amount of (x) voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Loans, 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 Holdings, any Borrower or any Subsidiary at or below par, in which case the amount of voluntary commitment reductions prepayments of such Loans or Permitted Equivalent Debt shall be deemed not to exceed the actual purchase price of such Loans or Permitted Equivalent Debt below par), in each case of such Incremental Revolving Credit CommitmentsTerm 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, Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case of such Incremental Term Loans and Revolving Commitments or Permitted Incremental Revolving Credit Commitments were obtained pursuant Equivalent Debt, to the extent it was incurred in reliance on clause (CA)(1) belowabove 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 (CB) additional amounts an unlimited amount, so long as in the Consolidated 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 for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence, does not exceed 4.00 to 1.00 (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 Loans then proposed to be incurred), (y) 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 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 Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) and (z) 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 from such Incremental Loans then proposed to be incurred) (provided, however, that 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, determined on a Pro Forma Basis as of the last day of Secured Net Leverage Ratio or the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans Total Net Leverage Ratio shall be calculated without giving effect to such amounts incurred (or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding commitments obtained) in reliance on the last day foregoing clause (A); provided, further, for the avoidance of such perioddoubt, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting extent the cash proceeds of any Incremental Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments) (the amount available under clauses (A) and (B), the “Available Incremental LoansAmount”). The Lead Borrower may elect to use clause (B) of the Available Incremental Amount regardless of whether the Borrowers have capacity under clause (A) of the Available Incremental Amount. Further, the Lead Borrower may elect to use clause (B) of the Available Incremental Amount prior to using clause (A) of the Available Incremental Amount, and if both clause (B) and clause (A) of the Available Incremental Amount are available and the Lead Borrower does not exceed 3.75 make an election, then the Lead Borrower will be deemed to 1.00; and
have elected to use clause (viB) such other conditions as of the Borrower, each Available Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeAmount.
Appears in 1 contract
Sources: Credit Agreement (Chobani Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental AmendmentFacility, and the Incremental Commitments Loans thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if each Credit Party and each Lender or Additional Lender providing a portion of the proceeds Incremental Facility shall execute and deliver to the Administrative Agent an amendment to this Credit Agreement or any other Credit Document and such other documentation as the Administrative Agent shall reasonably request to evidence the Incremental Facility of such Incremental Commitments are being used to finance a Permitted Acquisition, Lender or Additional Lender;
(ii) no Default or Event of Default under Sections 8.01(a) shall exist immediately prior to or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default Facility and the Borrower shall have occurred and be continuing or would exist in compliance with the Leverage Ratio pursuant to Section 7.11 on a pro forma basis after giving effect to such the Incremental CommitmentsLoans and the application of the proceeds thereof;
(iiiii) after giving effect to such Incremental Commitments, the conditions representations and warranties of Sections 4.02(i) each Credit Party set forth in Section 6 and (ii) in each other Credit Document shall be satisfied (it being understood that true and correct in all references to “the date material respects on and as of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental AmendmentFacility (except those representations that are qualified by materiality, which shall be true and correct); provided provided, that if the proceeds of such Incremental Commitments Facility are being to be used to finance a Permitted Acquisitionan Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in only the Specified Representations shall be understood for this purpose required to refer to “Material Adverse Effect” or similar definition as defined be true and correct in the main transaction agreement governing such Permitted Acquisition;all material respects; and
(iiiiv) to the Borrower extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) legal opinions and its Restricted Subsidiaries shall be such other closing documents reasonably requested by Administrative Agent in compliance connection with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and (including resolutions duly adopted by the last day board of the most recently ended Test Period, as if any Incremental Term Loans directors or Incremental Revolving Credit CommitmentsGeneral Partner, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewithCredit Parties authorizing the applicable Incremental Facility) and (B) reaffirmation agreements and/or such amendments to the Credit Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Incremental Loans are provided with the benefit of the applicable Credit Documents. On the effective date of any Incremental Facility, and, in each case (x) with respect each Additional Lender added as a new Lender pursuant to any such Incremental Revolving Facility shall become a Lender for all purposes under this Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, Agreement and (y) without netting the cash proceeds of any such Incremental Loans;
Loans shall be added to (ivand constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment borrowing of $1,000,000 outstanding Loans on a pro rata basis (provided that based on the relative sizes of such amount may be less than $20,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowborrowings), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 that each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and Loans will participate proportionately in each then outstanding borrowing of Loans. Each of the parties hereto hereby agrees that this Credit Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of or be consistent with this Section 2.8. Any such amendment shall agreebe memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld), but without the consent of any other Lenders, and furnished to the other parties hereto.
Appears in 1 contract
Sources: Term Loan Agreement (Dominion Midstream Partners, LP)
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 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, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Term Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an 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 (yi) if otherwise, no Event may be waived or omitted by Incremental Term Lenders holding more than 50% of Default shall have occurred and be continuing or would exist after giving effect to the aggregate Incremental Term Commitments under such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance an Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, assuming a borrowing line of business or division of, or all or substantially all of the maximum amount of Loans available thereunderEquity Interests of, and another Person, this clause (yii) without netting (other than with respect to the cash proceeds Specified Representations) may be waived or omitted (or the scope or content of any representation and warranty modified) by Incremental Term Lenders holding more than 50% of the aggregate Incremental Term Commitments under such Incremental LoansAmendment; provided further that the accuracy of the Specified Representations may not be waived without the consent of the Required Lenders;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 500,000,000 in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior at the Borrower’s option, up to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments an amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis Secured Debt Ratio is no more than 3.25 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableRelevant Reference 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 each case (x) with respect after giving effect to any Incremental Revolving Credit Commitment, assuming such incurrence on a borrowing of the maximum amount of Loans available thereunder, pro forma basis (such amounts under this clause (A) and (y) without netting B), the cash proceeds of any such “Available Incremental Loans, does not exceed 3.75 to 1.00Amount”); and
(viv) (A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective 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 Term Loans are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrower and the Lenders providing such Incremental Term Commitments and the Administrative Agent shall 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Event of Default (x) if or in the case of any Incremental Commitments, the proceeds of such Incremental Commitments which are being used to finance fund a Permitted Acquisition, no Event of Default under Sections Section 8.01(a), (f) or (fg)) 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 Commitmentsresult therefrom;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i), (iii) and (iiiv) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” Effect (as defined in the Specified Representations Merger Agreement)” shall be understood for this purpose to refer to “Material Adverse Effect” Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”; provided further, for the avoidance of doubt, for a Borrowing under the Revolving Credit Commitments or pursuant to a Revolving Commitment Increase (other than a Borrowing pursuant to a Revolving Commitment Increase used to fund a Permitted Acquisition on the Incremental Facility Closing Date, which shall be subject to the conditions in Sections 4.02(i), (iii) and (iv) as modified by the immediately preceding proviso), notwithstanding the first parenthetical phrase of Section 4.02, all of the conditions of Section 4.02 shall apply;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);; and
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed $225,000,000 in the sum aggregate; provided that no more than $150,000,000 of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as in the Consolidated First aggregate may constitute “Priority Payment Lien Net Leverage Ratio, determined on a Pro Forma Basis as Obligations” under the Closing Date Intercreditor Agreement; provided further that notwithstanding the fact that certain of the last day Obligations in respect of Incremental Loans and Incremental Commitments may not constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement, the Obligations relating to or arising out of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding Facility established on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of Original Closing Date shall always constitute “Priority Payment Lien Obligations” under the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeClosing Date Intercreditor Agreement.
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 thereof of such Incremental Amendment (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, no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would 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 Commitments 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 (other than customary “specified” representations and warranties) and (2) 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)(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, no Event of Default shall have occurred and be continuing or would exist after giving effect to otherwise agreed by the Incremental Lenders providing such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 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 the next sentence) and each Incremental Revolving Credit 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 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence)1,000,000;
(viii) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Loan Commitments following the Amendment No. 4 Effective Date shall not exceed the sum of (A) an amount equal to $1,500,000,000 less the aggregate principal amount 60,000,000 (net of Indebtedness incurred pursuant to Section 7.03(q7.03(r)(i)(A) at or prior to such time plus (Bii)(A)); provided that no more than $25,000,000 may be borrowed in reliance on this clause (A) all voluntary prepayments of Term Loans (and voluntary commitment reductions of Revolving Credit Commitments prior to Section 7.03(r)(i)(A) or simultaneous with (ii)(A)) until the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to first date following the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained delivery pursuant to clause (CSection 6.01(b) below)of financial statements for the fiscal quarter ending June 30, plus (C) additional amounts so long as 2020 on which the Consolidated First Lien Net Leverage RatioRatio 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 on and as of the date of the incurrence of such Incremental Term Loans or Incremental Commitments, the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis as Basis, including the pro forma effect of any Specified Transaction to be financed (in whole or in part) with the proceeds of the last day Incremental Loan, and 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 and excluding the cash proceeds of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available(x) any borrowing under any such Incremental Revolving Loan Commitments, as if (y) any Incremental Term Loans or Incremental Revolving Credit Commitmentsand (z) any other Indebtedness that is incurred substantially concurrently therewith) is no more than 3.304.00 to 1.00; and
(iv) [reserved];
(v) for purposes of the calculations in clause (iii) above, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (xA) with respect to any Incremental Revolving Credit CommitmentCommitments, assuming a borrowing of the maximum amount of Loans available thereunder, (B) to the extent the proceeds thereof are used to repay Indebtedness, pro forma effect shall be given to such repayment of Indebtedness and (yC) without netting the cash proceeds of Indebtedness incurred under clause (iii)(A) above shall be available at all times and not subject to any such Incremental Loansratio test, does not exceed 3.75 to 1.00; and
whether incurred simultaneously with amounts under clause (viiii)(B) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeor otherwise.
Appears in 1 contract
Sources: 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 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, no Default or Event of Default under Sections 8.01(a) or (f) shall have has occurred and be is continuing or would exist after giving effect result from the Incremental Term Loan; provided that, solely with respect to such any Incremental Commitments, or (y) if otherwiseTerm Loans incurred in connection with an acquisition that is permitted under this Agreement, no Default or Event of Default shall have occurred and be continuing or would exist after giving effect to at the time the definitive documentation for such Incremental Commitmentsacquisition is executed;
(ii) after giving effect to such Incremental Term Commitments, the conditions of Sections 4.02(i) and (iiSection 3.2(a) shall be satisfied (it being understood that all references to “the date of such Credit Extensiondate” or similar language in such Section 4.02 3.2(a) shall be deemed to refer to the effective date of such Incremental Amendment); provided that that, if the proceeds of such any Incremental Term Commitments are being used to finance a Permitted Acquisitionan acquisition permitted hereunder, (x) the reference in 4.02(iSection 3.2(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations “specified representations” and the representations and warranties in the relevant acquisition agreement the breach of which would permit the buyer to terminate its obligations thereunder or decline to consummate such acquisition and (y) the reference to “Material Adverse Effect” in the Specified Representations “specified representations” shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisitionacquisition permitted hereunder;
(iii) after giving effect to such Incremental Term Commitments, the Borrower and its Restricted Subsidiaries shall be is in compliance with the covenant financial covenants set forth in Section 7.11 if such covenant is then in effect6.12; provided that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) solely with respect to any Incremental Revolving Credit CommitmentTerm Loans incurred in connection with an acquisition that is permitted under this Agreement, assuming a borrowing of compliance with the maximum amount of Loans available thereunder, and (y) without netting financial covenants set forth in Section 6.12 shall exist at the cash proceeds of any time the definitive documentation for such Incremental Loans;acquisition is executed; and
(iv) each Incremental Term Commitment to the extent reasonably requested by the Agents, the Agents shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of have received (A) $1,500,000,000 less customary legal opinions addressed to the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior Agents and the Lenders, board resolutions and officers’ certificates consistent with those delivered on the Original Closing Date other than changes to such time plus legal opinion resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Agents and (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, reaffirmation agreements and/or such amendments to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant Security Agreement, as may be reasonably requested by the Agents in order to clause (C) below), plus (C) additional amounts so long as ensure that the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as enforceability of the last day Security Agreement and the perfection and priority of the most recently ended period of four consecutive fiscal quarters for which financial statements Liens thereunder are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, preserved and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreemaintained.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Ares Commercial Real Estate 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 the Incremental Base Amount less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and 7.03(w) at or prior to such time plus (B) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.001.00 (excluding, for purposes of calculating such ratio under this clause (y), Revolving Credit Loans borrowed for seasonal working capital requirements in an amount not to exceed $75,000,000); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental AmendmentFacility, and the Incremental Commitments Loans thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if each Credit Party and each Lender or Additional Lender providing a portion of the proceeds Incremental Facility shall execute and deliver to the Administrative Agent an amendment to this Credit Agreement or any other Credit Document and such other documentation as the Administrative Agent shall reasonably request to evidence the Incremental Facility of such Incremental Commitments are being used to finance a Permitted Acquisition, Lender or Additional Lender;
(ii) no Default or Event of Default under Sections 8.01(a) shall exist immediately prior to or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, or (y) if otherwise, no Event of Default Facility and the Borrower shall have occurred and be continuing or would exist in compliance with the Leverage Ratio pursuant to Section 7.11 on a pro forma basis after giving effect to such the Incremental Commitments;Loans and the application of the proceeds thereof;
(iiiii) after giving effect to such Incremental Commitments, the conditions representations and warranties of Sections 4.02(i) each Credit Party set forth in Section 6 and (ii) in each other Credit Document shall be satisfied (it being understood that true and correct in all references to “the date material respects on and as of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided Facility (except those representations that are qualified by materiality, which shall be true and correct); provided, that if the proceeds of such Incremental Commitments Facility are being to be used to finance a Permitted Acquisitionan Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in only the Specified Representations shall be understood for this purpose required to refer to “Material Adverse Effect” or similar definition as defined be true and correct in the main transaction agreement governing such Permitted Acquisition;all material respects; and
(iiiiv) to the Borrower extent reasonably requested by the Administrative Agent, the Administrative Agent shall have received (A) legal opinions and its Restricted Subsidiaries shall be such other closing documents reasonably requested by Administrative Agent in compliance connection with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and (including resolutions duly adopted by the last day board of the most recently ended Test Period, as if any Incremental Term Loans directors or Incremental Revolving Credit CommitmentsGeneral Partner, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewithCredit Parties authorizing the applicable Incremental Facility) and (B) reaffirmation agreements and/or such amendments to the Credit Documents as may be reasonably requested by the Administrative Agent in order to ensure that the Incremental Loans are provided with the benefit of the applicable Credit Documents. On the effective date of any Incremental Facility, and, in each case (x) with respect each Additional Lender added as a new Lender pursuant to any such Incremental Revolving Facility shall become a Lender for all purposes under this Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, Agreement and (y) without netting the cash proceeds of any such Incremental Loans;
Loans shall be added to (ivand constitute a part of and be of the same Type as and have, if applicable, the same Interest Period as) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment borrowing of $1,000,000 outstanding Loans on a pro rata basis (provided that based on the relative sizes of such amount may be less than $20,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowborrowings), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 that each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and Loans will participate proportionately in each then outstanding borrowing of Loans. Each of the parties hereto hereby agrees that this Credit Agreement shall be amended as necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of or be consistent with this Section 2.8. Any such amendment shall agreebe memorialized in writing by the Administrative Agent with the Borrower’s consent (not to be unreasonably withheld), but without the consent of any other Lenders, and furnished to the other parties hereto.
Appears in 1 contract
Sources: Term Loan Agreement
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) no Event of Default (x) if or in the case of any Incremental Commitments, the proceeds of such Incremental Commitments which are being used to finance fund a Permitted Acquisition, no Event of Default under Sections Section 8.01(a), (f) or (fg)) 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 Commitmentsresult therefrom;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i4.01(e), (f) and (iig) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 Sections shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i4.01(e) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” Effect (as defined in the Specified Representations Merger Agreement)” shall be understood for this purpose to refer to “Material Adverse Effect” Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentenceavailability);; and
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and voluntary commitment reductions Loans, Incremental Equivalent First Lien Debt or any other Indebtedness that is secured on a pari passu basis with the Obligations (including any prepayment of the Revolving Credit Commitments Facilities that is accompanied by a corresponding permanent reduction in commitments under the Revolving Credit Agreement) prior to or simultaneous with the Incremental Facility Closing Date (including through (x) “Dutch Auctions” open to all Lenders of the applicable Class on a pro rata basis in accordance with procedures of the type described in Section 2.05(a)(v) or (y) open-market purchases pursuant to Section 10.07(l), which shall be credited to the extent of the actual purchase price paid in cash in connection with such “Dutch Auction” or open-market purchase) (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit CommitmentsLoans, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (CB) belowbelow or to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans), ) plus (CB) additional amounts (including at any time prior to the utilization of amounts under clause (A) above) so long as (1) if such Indebtedness is secured by the Consolidated First Lien Net Collateral on a pari passu basis with the Obligations, the Secured Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed 4.00 to 1.00 and (2) if such Indebtedness is unsecured (or not secured by any portion of the Collateral), the Fixed Charge Coverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such periodthe most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, and, in each case is either not less than (x) with respect 2.00 to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and 1.00 or (y) without netting in the case of any such Indebtedness incurred to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Fixed Charge Coverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment (the amounts under the foregoing clause (A) are herein referred to as the “Free and Clear Incremental Amount”, and the amounts under the foregoing clause (B) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(x) or Section 7.03(y) are herein referred to as the “Available Incremental Amount”)); provided that no more than $60,000,000 of such Incremental Loans in the aggregate (when taken together with all Incremental Term Loans and Incremental Revolving Commitments (each as defined in the Revolving Credit Agreement)), may constitute “Priority Payment Lien Obligations” under the Closing Date Intercreditor Agreement. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any combination thereof, and any portion of any Incremental Loans incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis as of the end of any subsequent fiscal quarter after the initial incurrence of such Incremental Loans, such reclassification shall be deemed to have automatically occurred whether or not elected by the Borrower. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, (a) the cash proceeds of any Incremental Loans and any Indebtedness incurred and excluded under clause (b) shall be excluded in any calculation of “net” Indebtedness in determining whether such Incremental LoansLoans can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included) and (b) the incurrence (including by assumption or guarantee) or repayment of any Indebtedness in respect of the Revolving Credit Facility (and/or any Incremental Revolving Facility (as defined in the Revolving Credit Agreement) and any other revolving facilities included in such calculation) prior to, does not exceed 3.75 or simultaneously with, the event for which the Pro Forma Compliance determination of such ratio or other test is being made, and/or any incurrence of Indebtedness under the Revolving Credit Facilities or any other revolving facility that is used to 1.00; and
finance working capital needs of the Borrower and its Restricted Subsidiaries (vi) such other conditions as reasonably determined by the Borrower) shall, in each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreecase, be disregarded.
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 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, no Default or Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would 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 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 (yi) if otherwise, no Event may be waived or omitted by Incremental Lenders holding more than 50% of Default shall have occurred and be continuing or would exist after giving effect to the aggregate Incremental Commitments under such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment 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, assuming a borrowing line of business or division of, or all or substantially all of the maximum amount of Loans available thereunderEquity Interests of, and another Person, this clause (yii) without netting (other than with respect to the cash proceeds Specified Representations) may be waived or omitted (or the scope or content of any representation and warranty modified) by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental LoansAmendment;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 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 Increase 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 $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);; 55738387_110
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments CommitmentsCommitment Increases shall not exceed the sum of (A) $1,500,000,000 less 350,000,000500,000,000 in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior at its option, (I) up to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments an amount of Incremental Term Loans and voluntary commitment reductions of or Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts CommitmentsCommitment Increases so long as the Consolidated First Lien LienSenior Secured Net Leverage Ratio, determined on a Pro Forma Basis Ratio is no more than 3.002.50:1.00 as of the last day of the Test Period most recently ended period of four consecutive fiscal quarters for which financial statements are internally availablehave been delivered to the Lenders under Section 6.01(a) and (b), as if after giving effect to any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunderthereunder or (II) 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 Consolidated Senior Secured Net Leverage Ratio is no more than 4.00:1.00 as of the last day of the Test Period most recently ended for which financial statements have been delivered to the Lenders under Section 6.01(a) and (y) without netting the cash proceeds of b), after giving effect to any such incurrence on a Pro Forma Basis, and, in each case, with respect to any Incremental LoansRevolving Credit CommitmentRevolving Commitment Increase, does not exceed 3.75 to 1.00assuming a borrowing of the maximum amount of Loans available thereunder (such amounts under this clause (A) and (B), the “Available Incremental Amount”); and
(viv) (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 Term Loans or Incremental Commitments, as applicable, are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrower and the Lenders providing such Incremental Commitments and the Administrative Agent shall 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the following conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extensionborrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); ) (provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionLimited Condition Acquisition or Investment, there shall be no requirement to satisfy any or all such conditions described in clauses (A) and (B) below except that (I) the requirement that no Payment or Bankruptcy Default with respect to the Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments shall not be omitted or waived without the consent of the Required Lenders, (xII) the reference in 4.02(i) to the accuracy of the representations and warranties described in clause (A) shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Limited Condition Acquisition or Investment and the acquired business or assets), (yIII) the any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;Limited Condition Acquisition or Investment and (IV) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders):
(iiiA) the Borrower representations and its Restricted Subsidiaries shall be in compliance with the covenant warranties of each Loan Party set forth in Section 7.11 if such covenant 4 and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is then qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in effect, determined all respects as so qualified) on a Pro Forma Basis and as of the effective date of such Incremental Facility Closing Date Amendment with the same effect as though made on and as of such date, except to the last day extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified); and
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;therefrom.
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viii) the aggregate amount of the Incremental Term Loans Loans, together with the aggregate amount of any Incremental Commitments and the any Incremental Revolving Credit Commitments Equivalent Debt, shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 200,000,000, plus (B) all the amount of any voluntary prepayments prepayment of Term any Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous any Incremental Equivalent Debt, in each case that is secured pari passu with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below)Initial Loans, plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as after giving effect to the Consolidated First Lien incurrence of such Incremental Facility and any Incremental Equivalent Debt, any acquisition consummated concurrently therewith and such other applicable pro forma adjustment events, the Net Leverage RatioRatio of the Borrower, determined on a Pro Forma Basis pro forma basis as of the last day of the most recently ended period of four (4) consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans delivered or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect required to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansbe delivered pursuant to Section 5.1, does not exceed 3.75 2.50 to 1.001.00 (as demonstrated by a certificate of an Authorized Person of the Borrower delivered to the Agent) (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Base Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Base Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to this Section 2.17 and Incremental Equivalent Debt at or prior to such time, are herein referred to as the “Incremental Availability Amount”)); and
(viiv) such other conditions as the Borrower, each the Incremental Lender Lenders providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Base Incremental Amount or any combination thereof. For purposes of determining pro forma compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, the cash proceeds of any Incremental Facility or Incremental Equivalent Debt shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other pro forma adjustments shall be included).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Delek US Holdings, 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the following conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit ExtensionBorrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, Investment or irrevocable repayment, repurchase or redemption, there shall be no requirement to satisfy any or all such conditions except that (A) the requirement that no Payment or Bankruptcy Default with respect to the Parent or the Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments shall not be omitted or waived without the consent of the Required Lenders and (B) in the case of a Permitted Acquisition or Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Permitted Acquisition or Investment and the acquired business or assets), (y) the any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;Acquisition or Investment and (z) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders:
(iiiA) the Borrower representations and its Restricted Subsidiaries shall be in compliance with the covenant warranties of each Loan Party set forth in Section 7.11 if such covenant Article V and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is then qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in effect, determined all respects as so qualified) on a Pro Forma Basis and as of the effective date of such Incremental Facility Closing Date Amendment with the same effect as though made on and as of such date, except to the last day extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; and
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;therefrom.
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencesubsection (iii) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentencebelow);
(viii) the aggregate amount of the Incremental Term Loans and Loans, together with the aggregate principal amount of Incremental Revolving Credit Commitments Equivalent Debt, determined at the time of incurrence thereof, shall not exceed the sum of of:
(A) the greater of (1) $1,500,000,000 less the aggregate principal amount 150,000,000 and (2) 20.00% of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus LTM Consolidated EBITDA, plus
(B) [reserved], plus
(C) the amount actually paid in cash of all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Initial Term Loans Loans, Incremental Term Loans, Secured Notes, Permitted Refinancing of any Indebtedness permitted to be incurred under this Agreement, and voluntary Incremental Equivalent First Lien Debt and any other Indebtedness (other than revolving credit loans unless accompanied by a corresponding permanent commitment reductions of Revolving Credit Commitments reduction), in each case, secured on a pari passu basis with the Liens securing the Initial Facility prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments including through “Dutch Auctions” open to all Lenders of Incremental Term Loans and voluntary commitment reductions the applicable Class on a pro rata basis in accordance with procedures of Incremental Revolving Credit Commitmentsthe type described in Section 2.04(a)(iv), which, in the case of any such prepayment, repurchase, redemption or retirement, shall be credited to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant of the principal (or face) amount of Indebtedness so prepaid, repaid, retired or repurchased) (except to clause the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (C) belowother than revolving loans)), plus plus
(CD) additional amounts (including at any time prior to the utilization of amounts under the Base Incremental Amount (as defined below)) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Liens securing the Initial Term Loans, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansBasis, does not exceed 3.75 4.50 to 1.00, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Initial Term Loans, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis, does not exceed 4.50 to 1.00 and (3) if such Indebtedness is unsecured, such Indebtedness complies with the requirements of “Permitted Ratio Debt”; (the amounts under the foregoing clause (A) are herein referred to as the “Base Incremental Amount”, and the Base Incremental Amount, together with the amounts under the foregoing clause (C), are referred to herein as the “Free and Clear Incremental Amount” and the amounts under the foregoing clause (D) are herein referred to as the “Incurrence-Based Incremental Amount” (the Free and Clear Incremental Amount, together with the Incurrence-Based Incremental Amount, are herein referred to as the “Incremental Availability Amount”)); and
(viiv) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Free and Clear Incremental Amount or any component or combination thereof, and any portion of any Incremental Term Facility or Incremental Equivalent Debt, as applicable, incurred in reliance on the Free and Clear Incremental Amount shall be reclassified, as the Borrower may elect from time to time, as incurred under the Incurrence-Based Incremental Amount if the Borrower meets the applicable ratio for the Incurrence-Based Incremental Amount at such time on a Pro Forma Basis, and if any applicable ratio for the Incurrence-Based Incremental Amount would be satisfied on a Pro Forma Basis in any subsequent fiscal quarter after the initial incurrence of such Incremental Term Facility or such Incremental Equivalent Debt, as applicable, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower. If any Indebtedness is intended to be incurred under the Incurrence-Based Incremental Amount and any other component of the Incremental Availability Amount substantially simultaneously or contemporaneously, (A) the incurrence of the portion of such Indebtedness to be incurred or implemented under the Incurrence-Based Incremental Amount shall be calculated first without giving effect to any Indebtedness to be incurred under any other component of the Incremental Availability Amount, but giving full Pro Forma Effect to the use of proceeds of the entire amount of such Indebtedness and the related transactions, and (B) the incurrence of the portion of such Indebtedness to be incurred or implemented under any other component of the Incremental Availability Amount shall be calculated thereafter. For purposes of determining Pro Forma Compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, the cash proceeds of any Incremental Term Facility or Incremental Equivalent Debt, as applicable, shall be excluded from “net” Indebtedness in determining whether such Incremental Term Facility or such Incremental Equivalent Debt, as applicable, can be incurred (provided that the use of proceeds thereof and any other Pro Forma Adjustments shall be included).
Appears in 1 contract
Sources: Term Loan Credit Agreement (NGL Energy Partners LP)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would 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 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 (yi) if otherwise, no Event may be waived or omitted by Incremental Lenders holding more than 50% of Default shall have occurred and be continuing or would exist after giving effect to the aggregate Incremental Commitments under such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment 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, assuming a borrowing line of business or division of, or all or substantially all of the maximum amount of Loans available thereunderEquity Interests of, and another Person, this clause (yii) without netting (other than with respect to the cash proceeds Specified Representations) may be waived or omitted (or the scope or content of any representation and warranty modified) by Incremental Lenders holding more than 50% of the aggregate Incremental Commitments under such Incremental LoansAmendment;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 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 $5,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 150,000,000 in the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qthis clause (A) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior at the Borrower’s option, up to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments an amount of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and or Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage RatioRatio is no more than 4.25 to 1.00 for the Test Period most recently ended, determined after giving effect to any such incurrence on a Pro Forma Basis as Basis, and, in each case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the last day maximum amount of Loans available thereunder (or if the most recently ended period Incremental Facility will rank junior in right of four consecutive fiscal quarters for which financial statements are internally availablesecurity with the Revolving Credit Loans and the Term Loans, as if any up to an amount of Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitments so long as the Total Net Leverage Ratio is no more than 5.50 to 1.00 for the Test Period most recently ended, as applicable, available under after giving effect to any such Incremental Commitments had been outstanding incurrence on the last day of such perioda Pro Forma Basis, and, in each case (x) 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 (y) without netting B), the cash proceeds of any such “Available Incremental Loans, does not exceed 3.75 to 1.00Amount”); and
(viv) (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 applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrower and the Lenders providing such Incremental Commitments and the Administrative Agent shall may agree.
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions 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 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, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Term Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an 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 (yi) if otherwise, no Event may be waived or omitted by Incremental Term Lenders holding more than 50% of Default shall have occurred and be continuing or would exist after giving effect to the aggregate Incremental Term Commitments under such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Loan Party set forth in Article V and in each other Loan Document shall refer be true and correct in all material respects on and as of the Incremental Facility Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effectrespective dates; provided further that, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance an Acquisition or any other Investment permitted by this Agreement constituting an acquisition of assets constituting a business unit, assuming a borrowing line of business or division of, or all or substantially all of the maximum amount of Loans available thereunderEquity Interests of, and another Person, this clause (yii) without netting (other than with respect to the cash proceeds Specified Representations) may be waived or omitted (or the scope or content of any representation and warranty modified) by Incremental Term Lenders holding more than 50% of the aggregate Incremental Term Commitments under such Incremental LoansAmendment; provided further that the accuracy of the Specified Representations may not be waived without the consent of the Required Lenders;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viv) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 750,000,000the greater of (x) $650,000,000 and (y) 100% of EBITDA (calculated on a pro forma basis) of the Borrower and its Restricted Subsidiaries for the most recently ended Test Period in the aggregate pursuant to this clause (A) or (Bminus, the aggregate principal amount of Indebtedness Incremental Equivalent Debt incurred pursuant to Section 7.03(q(including any unused commitments obtained) at or prior to such time date in reliance on this clause (A), plus (B) all without duplication, the aggregate amount of (w) voluntary prepayments of 2020 Refinancing Term B Loans (including open market purchases of 2020 Refinancing Term B Loans (in the principal amount of the Indebtedness subject thereto) by the Borrower or any of its Restricted Subsidiaries at or below par and voluntary payments through Dutch auction procedures (in the principal amount of the Indebtedness subject thereto) and payments of 2020 Refinancing Term B Loans utilizing Section 3.07(c) or any other “yank-a-bank” provision hereunder), (x) permanent commitment reductions in respect of Revolving Credit Commitments prior to or simultaneous any revolving facility that is secured on a pari passu basis with the Incremental Facility Closing Date Obligations, (excluding y) voluntary prepayments prepayments, redemptions and repurchases of Incremental Term Loans and voluntary Loans, Incremental Equivalent Debt or other permitted Indebtedness (with corresponding commitment reductions in the case of Incremental Revolving any such revolving Indebtedness) that, in each case, is either secured on a pari passu basis with the Obligations or was incurred in reliance on clause (A) above or this clause (B) (including open market purchases and payments through Dutch auction procedures, in each case, at or below par (in the principal amount of the Indebtedness subject thereto) by the Borrower or any of its Restricted Subsidiaries) and (z) voluntary prepayments, redemptions and repurchases of Refinancing Term Loans or other Credit CommitmentsAgreement Refinancing Indebtedness, the proceeds of which were applied to the prepayment, redemption, repurchase or (in the case of any revolving Indebtedness), commitment reduction, as applicable, of any of the foregoing set forth under clause (w), (x) or (y) above (with corresponding commitment reductions in the case of any such revolving Indebtedness) (including open market purchases and payments through Dutch auction procedures, in each case, at or below par (in the principal amount of the Indebtedness subject thereto) by the Borrower or any of its Restricted Subsidiaries), in the case of each of clauses (w), (x), (y) and (z), except to the extent such Incremental Term Loans funded with the proceeds of long term Indebtedness (excluding, for the avoidance of doubt, proceeds of any revolving credit facility and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowintercompany loans), plus (C) additional amounts at the Borrower’s option, up to an amount of Incremental Term Loans so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis Secured Debt Ratio is no more than 3.25 to 1.00 as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally availableRelevant Reference Period, after giving effect to any such incurrence on a pro forma basis (such amounts under this clauseclauses (A) and, (B) and (C), the “Available Incremental Amount”); provided that any Indebtedness incurred in reliance on clause (A) or (B) may be reclassified, as if any Incremental Term Loans or Incremental Revolving Credit Commitmentsthe Borrower may elect from time to time, as applicablehaving been incurred under clause (BC) if the Borrower meets the Consolidated Secured Debt Ratio set forth in clause (BC) at such time on a pro forma basis); and provided, available further, that if amounts incurred under clause (BC) are incurred substantially concurrently with the incurrence of Indebtedness in reliance on clause (A) or (B) above or the incurrence of any other Indebtedness incurred under a Fixed Basket, the Consolidated Secured Debt Ratio shall be calculated without giving effect to such Incremental Commitments had been outstanding amounts incurred in reliance on the last day of such period, and, foregoing clause (A) or (B) or in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming reliance on a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00Fixed Basket; and
(viv) (A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (i) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective 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 Term Loans are provided with the benefit of the applicable Loan Documents, and (B) to the extent provided in the applicable Incremental Amendment, such other conditions as the Borrower, each Incremental Lender Borrower and the Lenders providing such Incremental Term Commitments and the Administrative Agent shall 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) 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 (xunless qualified by materiality or reference to the absence of a Material Adverse Effect, in which event they shall be true and correct), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (except for any representation and warranty that is qualified by materiality or reference to Material Adverse Effect, which such representation and warranty shall be true and correct in all respects) if the proceeds as of such earlier date, and except that for purposes of this Section 3.6, the representations and warranties contained in Section 6.5 shall be deemed to refer to the most recent statements furnished pursuant to Section 8.1; provided that, in connection with any Incremental Commitments are being used Amendment the primary purpose of which is to finance a Permitted AcquisitionLimited Condition Transaction, the condition set forth in this clause (i) shall be waived (other than with respect to the Specified Representations);
(ii) no Event of Default under Sections 8.01(a) or (f) 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 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 such Incremental Commitments;
(ii) after giving effect to such Incremental Commitmentsfinance a Limited Condition Transaction, the conditions of Sections 4.02(i) and condition set forth in this clause (ii) shall be satisfied waived (it being understood that all references other than with respect to “the date any Specified Event of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental AmendmentDefault); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries making of the Incremental Loans shall be in compliance with not contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party or any of the covenant set forth in Section 7.11 if such covenant is then in effect, determined on 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 Pro Forma Basis 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 last day of the most recently ended Test PeriodIncremental Loans contemplated thereby), 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case certifying to clauses (xi) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and through (yiv) without netting the cash proceeds of any such Incremental Loansabove;
(ivvi) 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 $20,000,000 10,000,000 and shall be in an increment of $1,000,000 5,000,000 (provided that such amount may be less than $20,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence) 10,000,000 and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (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 3.6(d)(vii)), unless otherwise agreed by the next sentence)Borrowing Agent and the Administrative Agent;
(vviii) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Incremental Loans and voluntary commitment reductions of Revolving Credit Commitments prior Incremental Equivalent Debt shall not exceed the Incremental Cap; and
(ix) to or simultaneous the extent reasonably requested by the 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 Incremental Facility those delivered on the Closing Date under Section 7.1 or otherwise reasonably satisfactory to the Administrative Agent, and (excluding voluntary prepayments of 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 Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitmentsare secured by the Collateral ratably with (or, to the extent such agreed by the applicable Incremental Term Loans and Lenders in the applicable Incremental Revolving Credit Commitments were obtained pursuant to clause (CAmendment, junior to) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental existing Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Construction Partners, 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(i) (x) if the proceeds of such Incremental Term Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Term Commitments, or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Term Commitments;
(ii) after giving effect to such Incremental Term Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Term Commitments are being used to finance a Permitted Acquisition, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentenceSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 150,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit CommitmentsLoans, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Term Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Term Loans, does not exceed 3.75 3.85 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Term Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Credit Agreement (DJO Finance LLC)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (for, solely with respect to Holdings and the Borrower, Section 8.01(f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 Sections shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, there shall be no requirement to satisfy any or all conditions of Section 4.02(i) to ), instead, the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) Representations, in each case, subject to the reference to “Material Adverse Effect” provisions set forth herein in connection with Limited Condition Transactions; provided, further, that the Incremental Lenders providing such Incremental Commitments may waive the requirement regarding the accuracy of Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionRepresentations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);; and
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments incurred after the Fourth Amendment and Restatement Effective Date shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time Incremental Base Amount plus (B) all voluntary prepayments prepayments, repurchases, redemptions and other retirements of Term Loans and voluntary commitment reductions Loans, Incremental Equivalent First Lien Debt or any other Indebtedness that is secured on a pari passu basis with the Obligations (including any prepayment of the Revolving Credit Commitments Facilities that is accompanied by a corresponding permanent reduction in commitments hereunder) prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments prepayments, repurchases, redemptions and other retirements of Incremental Term Loans and voluntary commitment reductions of (x) Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (D) below, (y) any Incremental Term Loans and Incremental Revolving Credit Commitments incurred under the Incurrence-Based Incremental Amount (as each term is defined in the Term Loan Credit Agreement) under the Term Loan Credit Agreement or (z) any Indebtedness to the extent funded with a contemporaneous incurrence of long-term funded Indebtedness (other than revolving loans)) minus (C) below)(x) the aggregate amount of Incremental Facilities incurred pursuant to clause (A) and (B) of the Free and Clear Incremental Amount under and as defined in the Term Loan Credit Agreement as in effect on the Fourth Amendment and Restatement Effective Date and (y) the aggregate principal amount of debt incurred under Section 7.03(x) and (y) in reliance on clause (A) and (B) above, plus (CD) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and/or (B) above) so long as (1) if such Indebtedness is secured by the Collateral on a pari passu basis with the Obligations, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, does not exceed (x) 4.25 to 1.00 or (y) in the case of any such Indebtedness incurred to finance a Permitted Acquisition or other Investment not prohibited hereunder, the Consolidated First Lien Net Leverage Ratio immediately prior to the incurrence of such Indebtedness and consummation of such Permitted Acquisition or other Investment, (2) if such Indebtedness is secured by the Collateral on a junior lien basis to the Liens securing the Obligations, the Secured Leverage Ratio, determined on a Pro Forma Basis as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on of the last day of such periodthe most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, and, in each case is either (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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, no Event of Default under Sections Section 8.01(a) or (f) 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, the conditions of Sections 4.02(i4.02(a) and (iic) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i4.02(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations any such representation shall be understood for this purpose to refer to “Material Adverse Effect” Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting excluding the cash proceeds of any such Incremental Term Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the incurred at or prior to such time (assuming all Incremental Revolving Credit Commitments established at or prior to such time are fully drawn) shall not exceed the sum of (A) $1,500,000,000 175,000,000 less the aggregate principal amount of Indebtedness Permitted Incremental Equivalent Debt incurred pursuant to Section 7.03(q7.03(u)(i)(A) at or prior to such time time, plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below) less the aggregate principal amount of Permitted Incremental Equivalent Debt incurred at or prior to such time pursuant to Section 7.03(u)(i)(B), (clauses (A) and (B), the “Incremental Starter Basket”) plus (C) additional amounts so long as the Consolidated First Lien Priority Net Leverage Ratio and the Consolidated Secured Net Leverage Ratio, each determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting excluding the cash proceeds of any such Incremental Loans, does do not exceed 3.75 3.25:1.00 and 4.00:1.00, respectively; provided that the Incremental Starter Basket may not be used to 1.00redeem, purchase, repurchase or otherwise refinance the Series A-2 Notes; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 thereof (the “Incremental Facility Tranche Closing Date”) of each of the following conditions:
(i) (xA) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Default or Event of Default under Sections 8.01(a) exists or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, Amendment; provided that if the primary purpose of proceeds of such Incremental Loans is to finance a Permitted Acquisition or (y) if otherwise, no Event Specified Investment then the foregoing shall be limited to the Specified Events of Default and (B) to the extent subject to testing, the Borrower shall have occurred and be continuing or would exist in compliance on a Pro Forma Basis with the Financial Performance Covenant after giving effect to such Incremental CommitmentsAmendment;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, either (x) the reference in 4.02(i) to the accuracy of the representations and warranties of each Credit Party set forth in Section 4 and in each other Credit Document shall refer be true and correct in all material respects on and as of the Incremental Tranche Closing Date with the same effect as though made on and as of such date, except to the accuracy of the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date; provided that would constitute Specified Representations any representation and (y) the reference warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries language shall be true and correct (after giving effect to any qualification therein) in compliance with the covenant set forth in Section 7.11 if all respects on such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term Loans respective dates or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, in each case (xy) with respect to any Incremental Revolving Credit CommitmentAmendment the primary purpose of which is to finance a Permitted Acquisition or Specified Investment, assuming a borrowing and if agreed to by the Incremental Lenders providing such Incremental Commitments and/or Incremental Loans, (A) the Specified Representations and the Acquisition Agreement Representations or (B) to the extent UK-style “certain funds” conditionally is requested by the Borrower, the Major Representations mutatis mutandis (in each case conformed as necessary for such acquisition or the incurrence of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such relevant Incremental Commitments and/or Incremental Loans) shall, in each case, be true and correct in all material respects on and as of the Incremental Tranche 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 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 shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates;
(iviii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 5,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of $1,000,000 (or the Dollar Equivalent in Pounds Sterling) (provided that such amount may be less than $20,000,000 5,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of $1,000,000 (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) below), and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 2,500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and shall be in an increment of $1,000,000 500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) (provided that such amount may be less than $5,000,000 2,500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) and not in an increment of $500,000 (or the Dollar Equivalent in Euros or Pounds Sterling) if such amount represents all remaining availability under the limit set forth in the next sentenceclause (iv) below);; and
(viv) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less 250,000,000 (or the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at Dollar Equivalent in Euros or prior to such time Pounds Sterling), plus (B) all voluntary prepayments at the Borrower’s option, up to an unlimited additional amount of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit CommitmentsCommitments so long as, as applicableafter giving effect to any such incurrence on a Pro Forma Basis (and after giving effect to any Permitted Acquisition or other Investment consummated in connection therewith on a Pro Forma Basis), available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) and with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and the Senior Secured Net Leverage Ratio on a Pro Forma Basis is no greater than 3.50:1.00, (y1) calculated without netting the cash proceeds of any Incremental Loan or Incremental Revolving Commitment and (2) assuming, in the case of any Incremental Revolving Commitment that such Incremental Loans, does Revolving Commitment was fully drawn on the date of effectiveness thereof (it being understood that Incremental Term Loans and Incremental Revolving Commitments may not exceed 3.75 to 1.00; and
be incurred under clause (viB) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeunless there is no capacity under clause (A)).
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Concordia International 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 thereof (the “Incremental Facility Closing Date”) of each of the following conditions:):
(ia) (x) if the proceeds no Event of Default shall exist after giving effect to such Incremental Commitments are being used (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance a Permitted AcquisitionLimited Condition Transaction, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Sections 8.01(aSection 8.01(1) or (for, solely with respect to the Borrower, Section 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference representations and warranties of the Borrower contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (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 and any representation and warranty that is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates); provided that in connection with a Limited Condition Transaction, the conditions in clause (x) (other than the condition referenced in the main transaction agreement governing such Permitted Acquisition;
proviso thereto in respect of Section 8.01(1) and Section 8.01(6)) and in clause (iiiy) shall only be required to the Borrower extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term C ommitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be; provided, further, that in the case of 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 shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of for the most recently ended Test PeriodPeriod (calculated on a pro forma basis), 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 fiscal quarter of the Borrower for testing compliance therewith, and, conditions contained in each case clause (xy) with respect to any Incremental Revolving Credit CommitmentSpecified Representations, assuming a borrowing of the maximum amount of Loans available thereundershall be required whether or not requested by such Persons, and (y) without netting the cash proceeds of any such Incremental Loansunless waived in accordance with Section 10.01;
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $20,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 5.0 million (provided that such amount may be less than $5,000,000 5.0 million if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of Section 2.14(4));
(vc) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount available under clauses (A) through (C) below, the “Available Incremental Amount”):
(A) the sum of (1) the greater of (the “Free and Clear Incremental Amount”) (x) $1,500,000,000 less 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 amount, without duplication, of Indebtedness incurred pursuant to Section 7.03(q(x) at voluntary prepayments, redemptions or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments repurchases of Incremental Term Loans and voluntary commitment reductions Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Revolving Credit CommitmentsTerm Loans or such Permitted Incremental Equivalent Debt by Holdings, the Borrower or any Subsidiaries of Holdings at or below par), in each case, only to the extent such Incremental Term Loans or Permitted Incremental Equivalent Debt was incurred in reliance on the Free and Clear Incremental Amount, (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 incurred in reliance on the Free and Clear Incremental Amount and (z) 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 (z) that constitutes a revolving credit commitment, voluntary permanent commitment reductions in respect thereof) previously applied to the (I) prepayment, redemption or repurchase of any Incremental Term Loans 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 were obtained pursuant or Permitted Incremental Equivalent Debt consisting of revolving credit commitments, in each case under sub-clauses (I) and (II), to 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 amount equal to the portion of the Facility to be replaced with (or refinanced by) such Incremental Loans or Incremental Commitments and (y) 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 (the amounts under this clause (4)(c)(B), together with the Free and Clear Incremental Amount, the “Non-Ratio Based Incremental Amount”), plus
(C) an unlimited amount, so long as in the case of this clause (C) belowonly (the “Ratio Based Incremental Amount” and together with the Non-Ratio Based Incremental Amount, the “Available Incremental Amount”), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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 AcquisitionAcquisition or similar Investment, no Event of Default under Sections 8.01(a) or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitmentsat the time of entering into a definitive agreement in respect thereof, 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionAcquisition or similar Investment, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed (1) $50,000,000 (which shall be in the form of Incremental Revolving Credit Commitments), plus (2) the sum of (A) $1,500,000,000 300,000,000, less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding (i) voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow and (ii) voluntary prepayments from the proceeds of Indebtedness), plus (C) additional unlimited amounts so long as (i) in the case of Indebtedness secured on a pari passu basis with the Liens securing the Obligations, the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 4.15 to 1.00, (ii) in the case of Indebtedness secured on a junior basis to Liens securing the Obligations, the Consolidated Secured Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans available under such Incremental Commitments had been outstanding on the last day of such period, and without netting the cash proceeds of any such Incremental Loans, does not exceed 4.15 to 1.00 or (iii) in the case of any Indebtedness contractually subordinated in right of payment to the Obligations or unsecured Indebtedness, either (1) the Consolidated Total Net Leverage Ratio does not exceed 4.95 to 1.00 or (2) the Fixed Charge Coverage Ratio is no less than 2.00 to 1.00, in each case determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available as if any Incremental Term Loans under such Incremental Commitments had been outstanding on the last day of such period, and without netting the cash proceeds of any such Incremental Loans; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Credit Agreement (Travelport LTD)
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 thereof 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) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) exists or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or (y) if otherwiseOther 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 have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Credit Extension” Limited Condition Transaction and no Event of Default under Section 8.01(a) or similar language in such Section 4.02 8.01(f) shall be deemed to refer to the effective date of exist on such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations Facility Closing Date and (y) the reference to “Material Adverse Effect” representations and warranties of the Loan Parties contained in the Specified Representations Article V or any other Loan Document shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined true and correct in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower all material respects on and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the date of such Incremental Facility Closing Date Amendment (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 that the last day conditions in clause (y) shall only be required to the extent requested by the Persons providing more than 50.0% of the most recently ended Test Periodapplicable Incremental Commitments, as if any Incremental Other Commitments, Other Term Loans or Other Notes, as the case may be; provided, further, that in the case of Incremental Revolving Credit Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, if required, only certain customary specified representations (conformed as applicablenecessary for such acquisition, available under such Incremental Commitments had been outstanding on the last day of such fiscal quarter of the Borrower for testing compliance therewith, and, investment or other transaction) shall be true and correct in each case all material respects; (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $20,000,000 500,000 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 the next sentenceclause (iii) below) and each Incremental Revolving Credit 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 $5,000,000 500,000 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 the next sentenceclause (iii) below);
; and (viii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and the Incremental Revolving Credit Commitments Other Notes shall not exceed the sum of (A) $1,500,000,000 less [reserved], plus (B) an amount equal to the aggregate principal 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(q7.03(m) at or prior to such time clause (i)(A) of the definition of “Permitted Ratio Debt” plus (BC) all voluntary prepayments an unlimited amount so long as, in the case of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to this clause (C) below)only, plus such amount at such time could be incurred without causing (Cx) additional amounts so long as 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 First Lien Senior Secured Net Leverage Ratio, determined Ratio (calculated on a Pro Forma Basis as Basis) to exceed 4.50:1.00, (y) in the case of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding Indebtedness secured by Liens on the last day 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 such periodunsecured Indebtedness, andthe Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, in each case (x) with respect case, after giving effect to any Incremental Revolving Credit Commitmentacquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepayment of Indebtedness in connection therewith), and assuming a borrowing for purposes of this calculation that (i) the maximum full committed amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.Additional Revolving Commitments
Appears in 1 contract
Sources: Credit Agreement (Redwire Corp)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the availability of any Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions:
(a) (i) no Event of Default shall exist after giving effect to such Incremental Commitments (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 that (x) if no Event of Default shall exist on the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, LCT Test Date and (y) no Event of Default under Sections 8.01(aSection 8.01(1) or (fSection 8.01(6) 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, the conditions of Sections 4.02(i) and (ii) the representations and warranties of the Borrower contained in Article V or any other Loan Document shall be satisfied (it being understood that true and correct in all references to “material respects on and as of the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer Incremental Amendment (provided that, to the effective date of extent that such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall specifically refer to the accuracy an earlier date, they shall be true and correct in all material respects as of the representations such earlier date and warranties any representation and warranty that would constitute Specified Representations and (y) the reference is qualified as to “Material Adverse Effectmateriality,” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dates); provided that, in the main transaction event that such Incremental Commitments are used to finance an acquisition, other Investment or other Limited Condition Transaction not prohibited by this Agreement and to the extent the Incremental Lenders participating in such Incremental Commitments agree, the foregoing clause (ii) shall be limited to customary “specified representations” and those representations included in the agreement governing related to such Permitted Acquisitionacquisition, other Investment or other Limited Condition Transaction that are material to the interests of the Lenders and only to the extent that the Parent or its applicable Subsidiary has the right to terminate its obligations under such agreement as a result of a breach of such representations;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivb) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceclause (c) of this Section 2.14(4));
(vc) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less Commitments, together with the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q7.02(b)(2) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below7.02(b)(12), plus (C) additional amounts so long as shall not exceed the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as sum of the last day following:
(I) the greater of (i) $208,500,000 and (ii) 50.0% of Adjusted EBITDA for the most recently ended period Test Period (calculated on a pro forma basis after giving effect to such incurrence and the use of four consecutive fiscal quarters for which financial statements are internally availableproceeds therefrom but without netting the proceeds thereof) of the Parent and its Subsidiaries; plus
(II) the aggregate principal amount, as if any Incremental without duplication, of voluntary prepayments, redemptions or repurchases of Closing Date Term Loans or Incremental Revolving Credit Commitmentsand any other Class of term Indebtedness secured by Liens on the Collateral pari passu with the Liens securing the Closing Date Term Loans (including, as applicable, available under prepayments, redemptions or repurchases of such Indebtedness below par, but only in an amount equal to the principal face amount of such Indebtedness) and permanent commitment reductions in respect of the Revolving Commitments or any other Class of revolving Indebtedness secured by Liens on the Collateral pari passu with the Liens securing the Revolving Commitments; provided that Incremental Commitments permitted pursuant to this Section 2.14(4)(c)(II) (A) may be secured by Liens on the Collateral only if the Indebtedness prepaid, redeemed, repurchased or terminated to permit such Incremental Commitments had been outstanding was so secured and (B) may not be secured by Liens on the last day Collateral senior in priority to the Liens securing (or that secured) the Indebtedness prepaid, redeemed, repurchased or terminated to permit such Incremental Commitments (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (II) shall not have been funded with proceeds of long-term Indebtedness (other than revolving Indebtedness)), plus
(III) an amount such that, after giving pro forma effect to the incurrence of such period, andIncremental Commitments and the application of the proceeds thereof (assuming, in each the case of Incremental Revolving Commitments, that such Incremental Revolving Commitments are drawn in full on the applicable Incremental Facility Closing Date) (x) with respect to any Incremental Commitments that are secured by Liens on the Collateral pari passu with the Liens securing the Closing Date Term Loans and the Revolving Credit CommitmentCommitments, assuming a borrowing of the maximum amount of Loans available thereunderFirst Lien Net Leverage Ratio does not exceed 1.90 to 1.00, and (y) without netting with respect to Incremental Commitments that are secured by Liens on the cash proceeds of any such Incremental LoansCollateral junior to the Liens securing the Closing Date Term Loans and the Revolving Commitments, the Secured Net Leverage Ratio does not exceed 3.75 1.90 to 1.00 and (z) with respect to Incremental Commitments that are unsecured, the Total Net Leverage Ratio does not exceed 2.40 to 1.00; and
, the amount available under this clause (vi) such other conditions as c), the Borrower, each “Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeCap”.
Appears in 1 contract
Sources: Credit Agreement (Mallinckrodt PLC)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, and the Incremental Commitments thereunder, shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 5.203.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, Investment, or irrevocable repayment, repurchase or redemption of any Indebtedness, (x) the reference in Section 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceSection 2.14(d)(v));
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 the Incremental Base Amount less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) and 7.03(w) at or prior to such time plus (B) all voluntary prepayments of Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and all voluntary prepayments of Revolving Credit Loans accompanied by corresponding voluntary permanent commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or to the extent funded with a contemporaneous incurrence of Indebtedness), plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 3.754.25 to 1.001.00 (or the Consolidated First Lien Net Leverage Ratio determined on a Pro Forma Basis does not exceed the Consolidated First Lien Net Leverage Ratio immediately prior thereto) (excluding, for purposes of calculating such ratio under this clause (y), Revolving Credit Loans borrowed for seasonal working capital requirements in an amount not to exceed $75,000,000150,000,000) (clauses (A), (B) and (C), the “Available Incremental Amount”); and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall 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 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, no Event of Default under Sections Section 8.01(a) or (f) 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, (a) the conditions representations and warranties of Sections 4.02(i) each Loan Party set forth in Article V and (ii) in each other Loan Document shall be satisfied true and correct in all material respects (it being understood except that all references any representation and warranty that is qualified as to “the date of such Credit Extensionmateriality” or similar language in such Section 4.02 “Material Adverse Effect” shall be deemed to refer to true and correct in all respects as so qualified) on and as of the effective date of such Incremental Amendment)Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date and (b) the Administrative Agent shall have received a Request for Credit Extension in accordance with the requirements hereof; provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(iclause (a) above to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” Effect (as defined in the Specified Representations Merger Agreement)” shall be understood for this purpose to refer to “Material Adverse Effect” Effect or similar definition as defined in the main transaction agreement governing such Permitted Acquisition”;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans[Reserved];
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 75,000,000 plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), ) plus (C) additional amounts so long as the Consolidated First Lien Net Senior Secured Leverage Ratio, determined on a Pro Forma Basis pro forma basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting excluding the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.004.50:1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Sources: Senior Secured Credit Agreement (Polymer Group 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 thereof 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) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) exists or (f) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or (y) if otherwiseOther 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 have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Credit Extension” Limited Condition Transaction and no Event of Default under Section 8.01(a) or similar language in such Section 4.02 8.01(f) shall be deemed to refer to the effective date of exist on such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations Facility Closing Date and (y) the reference representations and warranties of the Loan Parties contained in Article V or any other Loan Document shall be true and correct in all material respects on and as of the date of such Incremental Amendment (provided that, to “Material Adverse Effect” 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 that the 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 Other Notes, as the case may be; provided, further, that in the Specified Representations case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, if required, only certain customary specified representations (conformed as necessary for such acquisition, investment or other transaction) shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined true and correct in the main transaction agreement governing such Permitted Acquisitionall material respects;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 500,000 and shall be in an increment of $1,000,000 500,000 (provided that such amount may be less than $20,000,000 500,000 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 the next sentenceclause (iii) below) and each Incremental Revolving Credit 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 $5,000,000 500,000 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 the next sentenceclause (iii) below);; and
(viii) the aggregate amount of the Incremental Term Loans Loans, the Other Term Loans, Revolving Commitment Increases and the Incremental Revolving Credit Commitments Other Notes shall not exceed the sum of (A) $1,500,000,000 less the aggregate principal an amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, equal to the extent such Incremental Term Loans greater of (x) $7,500,000 and Incremental Revolving Credit Commitments were obtained pursuant to clause (Cy) below), plus (C) additional amounts so long as the 75% of Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis EBITDA as of the last day of the most recently ended period Test Period (calculated on a Pro Forma Basis) minus the aggregate principal amount of four consecutive fiscal quarters for which financial statements are internally availableIndebtedness incurred pursuant to clause (i)(A) of the definition of “Permitted Ratio Debt”, as if any Incremental 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 Incremental 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 CommitmentsFacility or any other pari passu revolving facility incurred pursuant to clause (A) above, as applicableSection 7.03(m) or clause (i)(A) of the definition of “Permitted Ratio Debt” to the extent accompanied by a permanent commitment reduction, available under (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 Incremental Commitments had been outstanding amount at such time could be incurred without causing (x) in the case of Indebtedness secured by Liens on the last day 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 such periodIndebtedness secured by Liens on the Collateral that rank junior to the Liens on the Collateral securing the Initial Term Loans, andthe 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 (x) with respect case, after giving effect to any Incremental Revolving Credit Commitmentacquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepayment of Indebtedness in connection therewith), and assuming a borrowing for purposes of this calculation that (i) the maximum full committed amount of Loans available thereunder, 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 (yii) without netting the cash proceeds of any such Incremental LoansFacility or other Indebtedness permitted hereunder then being incurred shall not be netted from Consolidated Total Net Debt, does not 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 3.75 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 1.00; and
the extent of such amounts incurred in reliance on clause (viA) and/or clause (B) (solely for the purpose of determining whether such other conditions 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, each any Incremental Lender providing Facility or other Indebtedness permitted hereunder may be incurred under 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 automatically reclassified (unless otherwise elected by the Lead Borrower) as incurred under clause (C) if the Borrowers meet the applicable leverage ratio under clause (C) at such Incremental Commitments and the Administrative Agent shall agreetime on a Pro Forma Basis).
Appears in 1 contract
Sources: 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the following conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extensionborrowing” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); ) (provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted AcquisitionLimited Condition Acquisition or Investment, there shall be no requirement to satisfy any or all such conditions described in clauses (A) and (B) below except that (I) the requirement that no Payment or Bankruptcy Default with respect to the Borrower shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments shall not be omitted or waived without the consent of the Required Lenders, (xII) the reference in 4.02(i) to the accuracy of the representations and warranties described in clause (A) shall refer to the accuracy of the representations and warranties that would constitute Specified Representations (conformed as necessary to apply only to such Limited Condition Acquisition or Investment and the acquired business or assets), (yIII) the any reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;Limited Condition Acquisition or Investment and (IV) the accuracy of such Specified Representations shall not be omitted or waived without the consent of the Required Lenders):
(iiiA) the Borrower representations and its Restricted Subsidiaries shall be in compliance with the covenant warranties of each Loan Party set forth in Section 7.11 if such covenant 4 and in each other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is then qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in effect, determined all respects as so qualified) on a Pro Forma Basis and as of the effective date of such Incremental Facility Closing Date Amendment with the same effect as though made on and as of such date, except to the last day extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects as so qualified); and
(B) no Default or Event of Default shall exist and be continuing or would immediately result from such proposed Incremental Commitment or from the application 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;therefrom.
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 25,000,000 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 the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(viii) the aggregate amount of the Incremental Term Loans Loans, together with the aggregate amount of any Incremental Commitments and the any Incremental Revolving Credit Commitments Equivalent Debt, shall not exceed the sum of (A) the greater of (x) $1,500,000,000 less 400,000,000 and (y) 100% of EBITDA for the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or four fiscal quarters ended immediately prior to such time date for which internal financial statements are available, plus (B) all the amount of any voluntary prepayments prepayment of Term any Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous any Incremental Equivalent Debt, in each case that is secured pari passu with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below)Initial Loans, plus (C) additional amounts (including at any time prior to the utilization of amounts under clauses (A) and (B) above) so long as after giving effect to the Consolidated First Lien incurrence of such Incremental Facility and any Incremental Equivalent Debt, any acquisition consummated concurrently therewith and such other applicable pro forma adjustment events, the Net Leverage RatioRatio of the Borrower, determined on a Pro Forma Basis pro forma basis as of the last day of the most recently ended period of four (4) consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans delivered or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect required to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loansbe delivered pursuant to Section 5.1, does not exceed 3.75 2.50 to 1.001.00 (as demonstrated by a certificate of an Authorized Person of the Borrower delivered to the Agent) (the amounts under the foregoing clauses (A) and (B) are herein referred to as the “Base Incremental Amount”, and the amounts under the foregoing clause (C) are herein referred to as the “Incurrence-Based Incremental Amount” (the Base Incremental Amount, together with the Incurrence-Based Incremental Amount, less the aggregate principal amount of Indebtedness incurred pursuant to this Section 2.17 and Incremental Equivalent Debt at or prior to such time, are herein referred to as the “Incremental Availability Amount”)); and
(viiv) such other conditions as the Borrower, each the Incremental Lender Lenders providing such Incremental Commitments and the Administrative Agent shall agree. The Borrower may elect to use the Incurrence-Based Incremental Amount prior to the Base Incremental Amount or any combination thereof. For purposes of determining pro forma compliance and any testing of any ratios in the Incurrence-Based Incremental Amount, the cash proceeds of any Incremental Facility or Incremental Equivalent Debt shall be excluded from “net” Indebtedness in determining whether such Incremental Facility can be incurred (provided that the use of proceeds thereof and any other pro forma adjustments shall be included).
Appears in 1 contract
Sources: Term Loan Credit Agreement (Delek US Holdings, 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 thereof (the “Incremental Facility Closing Date”Date (which shall be no earlier than the date of such Incremental Amendment) specified therein of each of the following conditions, together with any other conditions set forth in the Incremental Amendment:
(i) (x) if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) Section 3.02 shall be satisfied (it being understood that all references to “the date as of such Credit ExtensionDate” or similar language in such Section 4.02 3.02 shall be deemed to refer to the effective date of such Incremental AmendmentFacility Closing Date); provided that that, if the proceeds of such Incremental Commitments Commitment are being used to finance a Permitted AcquisitionLimited Condition Transaction, (x) the reference references in 4.02(iSection 3.02(a)(ii) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations customary “specified representations” of the Credit Parties (after giving effect to the Limited Condition Transaction) and (y) the reference references in Section 3.02(a)(iii) to “Material Adverse Effect” in the Specified Representations any Default or Event of Default shall be understood for this purpose to only refer to “Material Adverse Effect” no Event of Default at the time that the definitive agreement for such Limited Condition Transaction is entered into or similar definition as defined in the main transaction agreement governing date such Permitted Acquisitionirrevocable notice is given and, on the date of the incurrence thereof, both immediately before and immediately after giving effect thereto, no Specified Event of Default shall have occurred and be continuing or would result immediately therefrom;
(iii) the Borrower and its Restricted Subsidiaries shall be in compliance with the covenant set forth in Section 7.11 if such covenant is then in effect, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(ivii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceIncremental Cap) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in the next sentenceIncremental Cap);; and
(viii) to the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum extent reasonably requested by Administrative Agent, receipt by Administrative Agent of (A) $1,500,000,000 less customary legal opinions, board resolutions and officers’ certificates (including solvency certificates) substantially consistent with those delivered on the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(qClosing Date (conformed as appropriate) at or prior to such time plus and (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior reaffirmation agreements and/or such amendments to or simultaneous the Collateral Documents as may be reasonably requested by Administrative Agent in order to ensure that such Incremental Lenders are provided with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as benefit of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if any Incremental Term Loans or Incremental Revolving applicable Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on the last day of such period, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 to 1.00; and
(vi) such other conditions as the Borrower, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agreeDocuments.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, 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 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, no Event of Default under Sections 8.01(a) or (f) 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, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted Acquisition;
(iii) the Borrower Company and its Restricted Subsidiaries shall be in compliance with the covenant covenants set forth in Section 7.11 if such covenant is then in effect7.11, determined on a Pro Forma Basis as of the Incremental Facility Closing Date and the 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 fiscal quarter of the Borrower Company for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans;
(iv) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $20,000,000 10,000,000 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 $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 the next sentence);
(v) the aggregate amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not exceed the sum of (A) $1,500,000,000 450,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions (i) of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) belowbelow or (ii) with the proceeds of Indebtedness), plus (C) additional amounts so long as the Consolidated First Lien Net Leverage Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, 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 each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental Loans, does not exceed 3.75 1.00 to 1.00; and the Applicable Consolidated First Lien Net Leverage Ratio Level (or if such Incremental Commitments or Incremental Loans are incurred in connection with a Permitted Acquisition, no greater than the greater of (1) the Applicable Consolidated First Lien Net Leverage Ratio Level and (2) the Consolidated First Lien Net Leverage Ratio immediately prior to the consummation of such Permitted Acquisition); and
(vi) such other conditions as the BorrowerCompany, each Incremental Lender providing such Incremental Commitments and the Administrative Agent shall agree.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment, Amendment and the Incremental Commitments thereunder, thereunder shall be subject to the satisfaction on the date 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, no Event of Default under Sections 8.01(a) or (f) 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; provided, that, in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, the foregoing condition shall be (A) no Event of Default shall have occurred and be continuing on the date of execution of the definitive purchase agreement for such Limited Condition Acquisition and (B) no Event of Default under Section 9.01(a), (f) or (g) shall have occurred and be continuing or would exist after giving effect to such Limited Condition Acquisition and the funding of such Incremental Term Loan;
(ii) after giving effect to such Incremental Commitments, the conditions of Sections 4.02(i) and (ii) shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment); provided that if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition, (x) the reference in 4.02(i) to the accuracy of the representations and warranties set forth in Article VI shall refer be true and correct as and to the accuracy of the representations and warranties that would constitute Specified Representations and (y) the reference to “Material Adverse Effect” extent set forth in the Specified Representations shall be understood for this purpose to refer to “Material Adverse Effect” or similar definition as defined in the main transaction agreement governing such Permitted AcquisitionSection 5.02;
(iii) the Borrower and its Restricted Subsidiaries Administrative Agent shall have received a Pro Forma Compliance Certificate demonstrating that the Loan Parties would be in compliance with the covenant financial covenants set forth in Section 7.11 if 8.11 recomputed as of the last day of the period of four (4) fiscal quarters of the Borrower most recently ended for which financial statements have been delivered pursuant to Section 7.01(a) or 7.01(b) (or, prior to the first such covenant is then in effectdelivery, determined the financial statements for the fiscal year ended January 31, 2025) after giving effect to any Incremental Commitments on a Pro Forma Basis as of the Incremental Facility Closing Date and the last day of the most recently ended Test Period, as if any Incremental Term (assuming all Loans or Incremental Revolving Credit Commitments, as applicable, available under such Incremental Commitments had been outstanding on as of the last day of such fiscal quarter period); provided, that, in the case of an Incremental Term Loan the proceeds of which are used to fund, in whole or in part, the purchase price of a Limited Condition Acquisition, receipt of such Pro Forma Compliance Certificate may be satisfied in accordance with Section 1.03(e), at the option of the Borrower Borrower, on the applicable LCA Test Date for testing compliance therewith, and, in each case (x) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, and (y) without netting the cash proceeds of any such Incremental LoansLimited Condition Acquisition;
(iv) each the aggregate Incremental Commitments for any Revolving Commitment Increase or any other Class of Incremental Term Commitment Loan shall be in an aggregate principal amount that is not less than $20,000,000 10,000,000 (or if less, the entire remaining amount available for such institution) and shall be in an increment of $1,000,000 (provided that or such amount may be less than $20,000,000 if such amount represents all remaining availability under lesser amounts as agreed by 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 $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 the next sentenceAdministrative Agent);
(v) after giving effect to the establishment of such Incremental Commitments, the aggregate principal amount of the all Incremental Term Loans and the Incremental Revolving Credit Commitments effected pursuant to this Section 2.16 shall not exceed (x) during any Non-Investment Grade Period, the sum of (A) $1,500,000,000 less the aggregate principal amount of Indebtedness incurred pursuant to Section 7.03(q) at or prior to such time 250,000,000 plus (B) all voluntary prepayments of Term Loans and voluntary commitment reductions of Revolving Credit Commitments prior to or simultaneous with the Incremental Facility Closing Date (excluding voluntary prepayments of Incremental Term Loans and voluntary commitment reductions of Incremental Revolving Credit Commitments, to the extent such Incremental Term Loans and Incremental Revolving Credit Commitments were obtained pursuant to clause (C) below), plus (C) additional amounts an unlimited amount so long as the Consolidated First Lien Net Secured Leverage Ratio, determined Ratio (calculated on a Pro Forma Basis as of the last day of the most recently ended period of four consecutive fiscal quarters for which financial statements are internally available, as if and assuming 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 each case (xare fully drawn) with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder, is less than 2.25:1.0 and (y) without netting the cash proceeds of during any such Incremental LoansInvestment Grade Period, does not exceed 3.75 to 1.00; and$250,000,000;
(vi) receipt by the Administrative Agent of (A) such resolutions of the board of directors of the Loan Parties and opinions of counsel to the Loan Parties as it may reasonably request relating to the organizational authority for the establishment of such Incremental Commitments and the enforceability thereof and any other matters relevant thereto, and (B) during any Non-Investment Grade Period, such amendments to the Collateral Documents as may be reasonably requested by the Administrative Agent, all in form and substance reasonably satisfactory to the Administrative Agent;
(vii) such other conditions as the Borrower, each Incremental Lender providing any such Incremental Commitments Commitment and the Administrative Agent shall agree. For purposes of calculating the aggregate principal amount of all Incremental Commitments pursuant to Section 2.16(d)(v)(x), the Borrower may elect to establish such Incremental Commitments in reliance on Section 2.16(d)(v)(x)(A) or Section 2.16(d)(v)(x)(B) in any order or concurrently. If in connection with the establishment of any Incremental Commitments the Borrower is able to establish such Incremental Commitments in reliance on either of Section 2.16(d)(v)(x)(A) or Section 2.16(d)(v)(x)(B), and the Borrower does not notify the Administrative Agent as to which section such Incremental Commitments are being established make an election as to which section such Incremental Commitments are being established, the Borrower will be deemed to have established such Incremental Commitments in reliance on Section 2.16(d)(v)(x)(B). If the Borrower establishes Incremental Commitments in reliance on Section 2.16(d)(v)(x)(A) concurrently with the establishment of Incremental Commitments in reliance on Section 2.16(d)(v)(x)(B), the amount of any such Incremental Commitments established in reliance on Section 2.16(d)(v)(x)(A) shall be disregarded for purposes of calculating the Consolidated Secured Leverage Ratio in connection with determining the permissibility of the amount of such Incremental Commitments that may be established at such time in reliance on Section 2.16(d)(v)(x)(B).
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Sources: Credit Agreement (Docusign, Inc.)