Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)): (a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01); (b) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4)); (c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus (B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus (C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus (D) an unlimited amount, so long as in the case of this clause (D) only,
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 conditions:
(i) subject to Section 1.07(101.09(f)):
(a) (x) , no Default or Event of Default shall exist or would exist after giving effect to such Incremental Term Commitments; provided that;
(ii) subject to Section 1.09(f), with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained each Loan Party set forth in Article V or any IV and in each other Loan Document shall be true and correct in all material respects on and as of the date Incremental Facility Closing Date with the same effect as though made on and as of such Incremental Amendment (provided thatdate, except to the extent that such representations and warranties specifically refer 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, further, that, provided that (i) 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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause dates and (xii) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default representation and warranty under Section 8.01(1) or4.05(b), solely with respect a Material Adverse Effect that previously existed but that has ceased to exist on the Borrower, Section 8.01(6) date that such representation and in clause (y) with respect to Specified Representations, in each casewarranty is being made, shall be required whether or not requested by result in such Persons, unless waived in accordance with Section 10.01)representation and warranty being untrue;
(biii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 25,000,000 if such amount represents all remaining availability under the limit set forth in clause (civ) of this Section 2.14(4)below);
(civ) the aggregate principal amount of the Incremental Term Loans and Incremental Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, not exceed the sum of:Available Incremental Amount; and
(A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (1) $500.0 million plus any General Debt Basket Reallocated Amount less customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the First Lien Incremental Usage Amount plus 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 aggregate amount 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 (wB) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 provided in the applicable Incremental Amendment, such other conditions as the Borrowers and the Lenders providing such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Term Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,may agree.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V or any other Loan Document of this Agreement shall be true and correct in all material respects on and as (or, in the case 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 language 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 (after giving effect to any qualification therein) in all material respects on such (or in all respects, as applicable) as of the respective datesdate or for the respective period, as the case may be); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, that in the case of an acquisition Incremental Commitments incurred to finance a Permitted Acquisition or other Investment with permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a purchase price in excess of $100.0 million“Limited Condition Transaction”), the conditions contained in the proviso to clause (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 no a Default or Event of Default under Section 8.01(18.01(a) or, solely with respect to the Borrower, Section 8.01(6or (f)) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (yiii)(B) with respect to Specified Representationsbelow 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, shall be required whether or not requested case if otherwise agreed by the Incremental Lenders providing such Persons, unless waived in accordance with Section 10.01)Incremental Commitments;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided 10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that such amount may be is not less than $5.0 million if such amount represents all remaining availability under the limit set forth 5,000,000 and shall be in clause (c) an increment of this Section 2.14(4))$1,000,000;
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Amendment No. 45 Effective Date shall not exceed (wA) voluntary prepaymentsan amount equal to $60,000,00035,000,000 (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(A) or (ii)(A)); provided that no more than $25,000,000amount may be borrowed in reliance on this clause (A) (and Section 7.03(r)(i)(A) or (ii)(A)) until the first date following the delivery pursuant to Section 6.01(b) of financial statements for the fiscal quarter ending June 30, redemptions 2020 on which the Consolidated First Lien Net Leverage Ratio is less than or repurchases 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 Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases as of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any date of its Subsidiaries at or below par, in which case the amount of voluntary prepayments incurrence of such Incremental Term Loans or Permitted Incremental Equivalent Debt shall Commitments, the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be deemed not to exceed financed (in whole or in part) with the actual purchase price proceeds of such Loans the Incremental Loan, and assuming all previously established and simultaneously established Incremental Revolving Loan Commitments or Permitted Incremental Equivalent Debt below par), in each case, only to revolving loan commitments incurred under Section 7.03(r)(i) are fully drawn and excluding the extent cash proceeds of (x) any borrowing under any such Incremental Revolving Loan Commitments, (y) any Incremental Term Loans or Permitted Incremental Equivalent Debt was and (z) any other Indebtedness that is incurred substantially concurrently therewith) is no more than 4.00 to 1.00; and
(iv) [reserved];
(v) for purposes of the calculations in reliance on clause (A)(1iii) above, (xA) voluntary permanent commitment reductions in with respect to any Incremental Commitments, assuming a borrowing of Incremental Revolving Commitments the maximum amount of Loans available thereunder, (as defined in the First Lien Credit AgreementB) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing proceeds thereof are used to repay Indebtedness, Other Loans, Refinancing pro forma effect shall be given to such repayment of Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely Indebtedness incurred under clause (iii)(A) above shall be available at all times and not subject to the extent not in duplication of prepaymentsany ratio test, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of whether incurred simultaneously with amounts under clause (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreementiii)(B) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,otherwise.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):set forth in the Incremental Amendment:
(ai) (x) no Event of Default shall exist after giving effect to such Incremental Commitments, the conditions of Section 2.2 shall be satisfied (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 2.2 shall be deemed to refer to the Incremental Amendment Date); provided provided, that, such Incremental Amendment may include a waiver by the Incremental Lenders party thereto of the condition set forth in Section 2.2(c) and, in connection with respect to any Incremental Amendment Commitment, the primary purpose of which is to finance an acquisition a Permitted Acquisition, a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other Investment permitted by this Agreement, the requirement pursuant than with respect to this clause (4)(a)(x) shall be that no any Event of Default under Section 8.01(17.1(a) or, solely with respect to the Borrower, or (f)) of Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)2.2;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (cSection 1.12(d)(iii)) of this Section 2.14(4));
(c) the and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of Incremental Loans and Incremental Commitments shall not, together with $1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under 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 First Lien Incremental Usage Amount plus (2) limit set forth in Section 1.12(d)(iii)); provided that the aggregate amount of all Revolving Commitment Increases consummated under this Section 1.12 shall not exceed $100,000,000;
(wiii) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, solely in the case of this clause the making of Incremental Term Loans, after giving Pro Forma Effect to both (z), so long as A) the making of Incremental Term Loans under such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) Incremental Amendment and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) any Specified Transactions consummated in connection therewith, the Asset Coverage Ratio for the most recently ended Test Period shall be greater than the greater of (x) in the case of any Incremental Loans 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 1.50:1.00 and (y) the ratio as set forth in Section 6.1 hereof for the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plusmost recently ended Test Period; and
(Civ) solely to the extent not in duplication of prepaymentsreasonably requested by the Administrative Agent, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), receipt by the aggregate amount Administrative Agent of (xA) voluntary prepaymentscustomary legal opinions, redemptions or repurchases of Loans board resolutions and Permitted Incremental Equivalent Debt officers’ certificates (including solvency certificates) consistent with those delivered on the Closing Date (conformed as appropriate) other than any Permitted Incremental Equivalent Debt that is changes to such legal opinions resulting from a revolving credit facility) (including purchases change in law, change in fact or change to counsel’s form of Loans or Permitted Incremental Equivalent Debt by Holdingsopinion reasonably satisfactory to the Administrative Agent, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (zB) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied reaffirmation agreements and/or such amendments to the prepayment, redemption or repurchase 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 any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,applicable Loan Documents.
Appears in 1 contract
Sources: Credit Agreement (SelectQuote, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments 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 $100.0 million, the conditions contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) 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 First Second Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or Permitted Incremental Equivalent Debt by Holdings, 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 or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1clause (A)(1) of the First Lien Credit Agreementabove, (y) voluntary prepayments, redemption or repurchase of First Second Lien Incremental Usage Amount Debt (including purchases of First Second Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any 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 First Second Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities); provided, plus
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) 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, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 conditions:
(i) subject to Section 1.07(101.09(f)):
(a) (x) , no Default or Event of Default shall exist or would exist after giving effect to such Incremental Term Commitments; provided that;
(ii) subject to Section 1.09(f), with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained each Loan Party set forth in Article V or any IV and in each other Loan Document shall be true and correct in all material respects on and as of the date Incremental Facility Closing Date with the same effect as though made on and as of such Incremental Amendment (provided thatdate, except to the extent that such representations and warranties specifically refer 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, further, that, provided that (i) 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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause dates and (xii) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default representation and warranty under Section 8.01(1) or4.05(b), solely with respect a Material Adverse Effect that previously existed but that has ceased to exist on the Borrower, Section 8.01(6) date that such representation and in clause (y) with respect to Specified Representations, in each casewarranty is being made, shall be required whether or not requested by result in such Persons, unless waived in accordance with Section 10.01)representation and warranty being untrue;
(biii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 25,000,000 if such amount represents all remaining availability under the limit set forth in clause (civ) of this Section 2.14(4)below);
(civ) the aggregate principal amount of the Incremental Term Loans and Incremental Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, not exceed the sum of:Available Incremental Amount; and
(v) (A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (1) $500.0 million plus any General Debt Basket Reallocated Amount less customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the First Lien Incremental Usage Amount plus 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 aggregate amount 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 (wB) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 provided in the applicable Incremental Amendment, such other conditions as the Borrowers and the Lenders providing such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Term Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,may agree.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(ai) (x) no Event if the proceeds of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is Commitments are being used to finance an acquisition a Permitted Acquisition or other Investment permitted by this Agreementhereunder, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1Sections 8.01(a), 8.01(f) or, solely with respect to the Borrower, Section 8.01(6or 8.01(g) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, and or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the representations conditions of Sections 4.02(i) and warranties of the Borrower contained in Article V or any other Loan Document 4.02(ii) shall be true and correct in satisfied (it being understood that all material respects on and as of references to “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 EffectLoan” or similar language in such Section 4.02 shall be true and correct (after giving effect deemed to any qualification therein) in all respects on refer to the effective date of such respective datesIncremental Amendment); provided that, in connection with an acquisition if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, the conditions reference in clause (xSection 4.02(i) to the accuracy of the representations and in clause (y) shall only be required warranties shall, to the extent requested agreed by the Persons providing more than 50% of the applicable Incremental Loans Lender, refer to customary “specified representations” and Incremental Commitments (provided, further, that, in the case of an “specified 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)representations”;
(biii) [reserved];
(iv) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(42.14(d)(v));
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2v) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of the Incremental Loans (when aggregated with the Initial Loans and Permitted with amounts incurred at or prior to such time pursuant to Section 7.03(q)) shall not exceed the greater of (A) $300,000,000 and (B) an unlimited amount so long as the Incremental Equivalent Debt (other than Loan-to-Value Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, as if any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted available under such Incremental Equivalent Debt by Holdings, Commitments had been outstanding on the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments last day of such Incremental 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)period, and, in each case, only without netting the cash proceeds of any such Incremental Loans, does not exceed 5.0%; and
(vi) to the extent reasonably requested by the Lender, the Lender shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date other than changes to such Incremental Loans legal opinion resulting from a change in law, change in fact or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect change to counsel’s form of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, opinion reasonably satisfactory to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,Lender.
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Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the incurrence of Indebtedness in respect of Other Notes, the effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):conditions:
(ai) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition exists or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, Other Commitments, Other Term Loans or Other Notes, as applicable; provided, that in the case of Incremental Commitments, Other Commitments, Other Term Loans or Other Notes incurred in connection with a Limited Condition Transaction, no Event of Default shall exist on the date of execution of the definitive documentation (or notice, as applicable) with respect to such Limited Condition Transaction and no Event of Default under Section 8.01(a) or 8.01(f) shall exist on such Incremental Facility Closing Date and (y) the representations and warranties of the Borrower 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 the extent that such representations and warranties specifically refer to an earlier date, they shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language 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 the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 5050.0% of the applicable Incremental Commitments, Other Commitments, Other Term Loans and Incremental Commitments (or Other Notes, as the case may be; provided, further, that, that in the case of an acquisition 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 Investment with a purchase price in excess of $100.0 million, the conditions contained in the proviso to clause (xtransaction) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived true and correct in accordance with Section 10.01)all material respects;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 500,000 and shall be in an increment of $500,000 (provided that such amount may be less than $5.0 million 500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, delayed, denied or conditioned) or (y) such amount represents all remaining availability under the limit set forth in clause (ciii) of this Section 2.14(4));
(cbelow) the and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $500,000 and shall be in an increment of Incremental Loans and Incremental Commitments shall not$500,000 (provided that such amount may be less than $500,000 if (x) approved by the Administrative Agent (such approval not to be unreasonably withheld, together with delayed, denied or conditioned) or (y) such amount represents all remaining availability under the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:limit set forth in clause (iii) below); and
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2iii) the aggregate amount of the Incremental Term Loans, the Other Term Loans, Revolving Commitment Increases and the Other Notes shall not exceed (wA) [reserved], plus (B) an amount equal to the sum, without duplication, of all (i) voluntary prepaymentsprepayments 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, redemptions Section 7.03(m) or repurchases clause (i)(A) of Incremental Loans the definition of “Permitted Ratio Debt” and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facilityii) (including purchases of Incremental 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 commitment reductions and voluntary prepayments of such Incremental 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 Incremental Equivalent Debt shall be deemed not Ratio Debt” to exceed the actual purchase price of such Loans or Permitted Incremental Equivalent Debt below par)extent accompanied by a permanent commitment reduction, (in each case, only 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 such Incremental Loans funded with (A) proceeds of long term Indebtedness (other than revolving Indebtedness or Permitted Incremental Equivalent Debt was intercompany Indebtedness) or (B) proceeds of Indebtedness incurred in reliance on pursuant to clause (A)(1A) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit AgreementSection 7.03(m) or Permitted Incremental Equivalent Debt clause (as defined in the First Lien Credit Agreement) 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 Section 2.14(4)(c)(A)(1i)(A) of the First Lien Credit Agreement, definition of “Permitted Ratio Debt” plus (yC) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debtan unlimited amount so long as, in the case of this clause (z)C) only, so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) amount at such time could be incurred without causing (x) in the case of any Incremental Loans Indebtedness secured by Liens on the Collateral that effectively extend rank pari passu with the Maturity Date ofLiens securing the Initial Term Loans, or refinancethe Consolidated Senior Secured Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, any Facility, an amount equal to the portion of the Facility to be replaced with (or refinanced by) such Incremental Loans and (y) in the case of any Incremental Loans Indebtedness secured by Liens on the Collateral that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal rank junior to the portion of Liens on the relevant terminated or cancelled Loan, plus
(C) solely to Collateral securing the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2)Initial Term Loans, the aggregate amount of Consolidated Secured Net Leverage Ratio (xcalculated on a Pro Forma Basis) voluntary prepaymentsto exceed 4.50:1.00, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases in the case of any Credit Agreement Refinancing unsecured Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtednessthe Consolidated Total Net Leverage Ratio (calculated on a Pro Forma Basis) to exceed 4.50:1.00, in each case, previously applied after giving effect to any acquisition consummated in connection therewith and all other appropriate pro forma adjustments (including giving effect to the prepaymentprepayment of Indebtedness in connection therewith), redemption or repurchase and assuming for purposes of this calculation that (i) the full committed amount of any Loans Additional Revolving Commitments or Revolving Commitment Increases then being made or incurred shall be treated as fully drawn and Permitted outstanding for such purpose and (ii) cash proceeds of any such Incremental Equivalent Facility or other Indebtedness permitted hereunder then being incurred shall not be netted from Consolidated Total Net Debt, in the case 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 (z)C) are incurred concurrently with the incurrence of Incremental Loans in reliance on clause (A) and/or clause (B) above, so long the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio shall be permitted to exceed the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as such prepaymentapplicable, redemption or repurchase was not previously included set forth in clause (xC) above; other than, above to the extent of such amounts incurred in each case reliance on clause (A) and/or clause (B) (solely for the purpose of determining whether such concurrently incurred amounts incurred under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (DC) only,are permissible) (it being understood that (I) if the Consolidated Senior Secured Net Leverage Ratio, the Consolidated Secured Net Leverage Ratio or the Consolidated Total Net Leverage Ratio, as applicable, incurrence test is met, then, at the election of the Lead Borrower, any Incremental Facility or other Indebtedness permitted hereunder may be incurred under 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 time 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 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 (subject to Section 1.07(10)):conditions:
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this AgreementAgreement that is not conditioned upon obtaining third-party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunderhereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be (provided, further, that, in the case of an any such acquisition or other Investment with a purchase price in excess of $100.0 20.0 million, the conditions contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) 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) $500.0 200.0 million plus any General Debt Basket Reallocated Amount less and (ii) 100% of Consolidated EBITDA of the First Lien Incremental Usage Amount Borrower and the Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis)$150.0 million plus (2) the aggregate amount of (wx) voluntary prepayments, redemptions or repurchases prepayments of Term Loans (including Incremental Loans Term Loans) and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a consisting of revolving credit facilityfacilities) (including purchases of Incremental the 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 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,or
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (yi) the representations and representations, warranties of the Borrower contained Loan Parties set forth in Article V or any Section 6 hereof and in the other Loan Document Documents shall then be true and correct in all material respects on (unless qualified by materiality or reference to the absence of a Material Adverse Effect, in which event they shall be true and as of the date of such Incremental Amendment (provided thatcorrect), 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 as of such earlier date; provided, further, that, (except for any representation and warranty that is qualified as by materiality or reference to “materiality,” “Material Adverse Effect” or similar language , which such representation and warranty shall be true and correct (after giving effect to any qualification therein) in all respects on respects) as of such respective dates)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 an acquisition or other Investment permitted hereunderany Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the conditions condition set forth in this clause (x) and in clause (yi) shall only be required to the extent requested by the Persons providing more waived (other than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in 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 the Specified Representations);
(ii) no Event of Default under Section 8.01(1or Default shall have occurred and be continuing or would result from such Loan or the application of the proceeds thereof; provided that, in connection with any Incremental Amendment the primary purpose of which is to finance a Limited Condition Transaction, the condition set forth in this clause (ii) or, solely shall be waived (other than with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to any Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01Event of Default);
(biii) the making of the Incremental Loans shall not contravene any Law applicable to any Loan Party or Subsidiary of any Loan Party or any of the Lenders;
(iv) no Material Adverse Effect shall have occurred since the date of the last audited financial statements of the Borrowers delivered to the Administrative Agent; and
(v) the Borrowers shall have delivered to the Administrative Agent a certificate dated as of the Incremental Facility Closing Date signed by a Responsible Officer of the Borrowing Agent certifying that, before and after giving effect to the Incremental Commitments (and the Incremental Loans contemplated thereby), certifying to clauses (i) through (iv) above;
(vi) the Borrowers shall have delivered to the Administrative Agent a duly executed Incremental Amendment, in accordance with the terms set forth in this Section 3.6;
(vii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million 10,000,000 and shall be in an increment of $5,000,000 (provided that such amount may be less than $5.0 million 10,000,000 and not in an increment of $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(43.6(d)(vii)), unless otherwise agreed by the Borrowing Agent and the Administrative Agent;
(cviii) the aggregate principal amount of all Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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)Cap; and
(ix) to 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, only substantially consistent with the those delivered on the Closing Date under Section 7.1 or otherwise reasonably satisfactory to the extent such Administrative Agent, and (ii) customary documents and filings (including amendments to the Security Documents and any intercreditor agreement) as the Administrative Agent may reasonably require to assure that the Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause are secured by the Collateral ratably with (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each caseor, to the extent such agreed by the applicable Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, Lenders in the case of this clause (z)applicable Incremental Amendment, so long as such prepayment, redemption or repurchase was not previously included in clause (wjunior to) 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), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other existing Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Construction Partners, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreementin connection with a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x4)(a)(i) shall be that no Event of Default under subject to Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments1.07(11)), and (yii) the 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, date and 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); provided that, that in connection with an acquisition or other Investment permitted hereundera Limited Condition Transaction, the conditions in clause (xi) and in clause (yii) shall (x) only be required to the extent requested by the Persons non-Affiliated Lenders providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (providedor Incremental Revolving Loans and Incremental Revolving Commitments, further, that, in as 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) may be and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested tested (if applicable) solely on the applicable LCT Test Date as selected by such Persons, unless waived in accordance with the Borrower pursuant to Section 10.011.07(11);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5.0 million 5,000,000 (or such lesser amount) 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 (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 clause (c) of Section 2.14(4));
(c) 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:of (the amount available under clauses (i) through (iii) below, the “Available Incremental Amount”):
(i) the sum of (I) the greater of (A) $107,300,000 and (1B) $500.0 million 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) any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount Amount, plus (2III) the aggregate principal amount, without duplication, of (including, as applicable (x) prepayments, terminations, redemptions and purchases of such Indebtedness at or below par and (y) prepayments, redemptions and purchases of any Commitment or Loan that is terminated or cancelled in accordance with Section 3.07) (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) (wA) voluntary prepayments, redemptions or repurchases of Incremental (i) Closing Date Term Loans and (ii) Incremental Term Loans or Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility), in each case under this clause (ii), to the extent either (X) incurred in reliance on the Non-Ratio Based Incremental Amount or (including purchases of 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 Loans Facility 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 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 Loans or Permitted Incremental Equivalent Debt was then being incurred in reliance on this clause (A)(1) aboveIII))), (xB) voluntary prepayments (accompanied by corresponding permanent commitment reductions in respect of (i) the Closing Date Revolving Facility and (ii) Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each casecase under this clause (ii), to the extent such 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 Commitments 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 was then being incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, this clause (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its SubsidiariesIII))) and (zC) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other IndebtednessIndebtedness previously applied, in each casedirectly or indirectly, previously applied to the (a) prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred Indebtedness described in reliance on clause sub-clauses (A)(1A) or (B) above or any First Lien Incremental Usage Amount Debt(b) voluntary permanent commitment reductions in respect of revolving credit commitments described in subclause (B) above (provided, in that the case of this clause (z), so long as such prepayment, redemption or repurchase was relevant commitment reduction is not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of funded with long-term Indebtedness (other than (x) revolving credit facilitiesIndebtedness and intercompany loans and (y) any Incremental Facility or Permitted Incremental Equivalent Debt then being incurred in reliance on this clause (III))), plus
(Bii) (xI) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any FacilityFacility 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 (yII) 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
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(Diii) an unlimited amount, so long as in the case of this clause (Diii) onlyonly (the “Incremental Ratio Basket”),
(I) in the case of Incremental Loans or Incremental 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), with respect to Incremental Loans or Incremental 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 2.50 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments under this clause (I) are fully drawn and (ii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital),
(II) in the case of Incremental Loans or Incremental Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement and for the avoidance of doubt is not incurred pursuant to clause (III) below, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.00 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments under this clause (I) are fully drawn and (ii) in the case of all Incremental Loans, calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital), or
(III) in the case of Incremental Loans or Incremental Commitments that are unsecured or 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 3.50 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and (ii) in the case of all Incremental Loans, calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital)); provided that in the case of any Incremental Commitment (or Permitted Incremental Equivalent Debt) in the form of a delayed draw term loan facility, notwithstanding anything to the contrary herein, in calculating the First Lien Net Leverage Ratio, Secured Net Leverage Ratio or Total Net Leverage Ratio, as applicable, for purposes of this Section 2.14(4)(c)(iii), at the election of the Borrower, either (A) such Incremental Commitment (or Permitted Incremental Equivalent Debt) shall be deemed to be fully drawn at the time such Incremental Commitment (or Permitted Incremental Equivalent Debt) becomes effective and thereafter the borrowings under such Incremental Commitment (or Permitted Incremental Equivalent Debt) shall not constitute an additional incurrence of Indebtedness for purposes of this Section 2.14, or (B) such Incremental Commitment and the Incremental Term Loans (or Permitted Incremental Equivalent Debt) in respect thereof shall be deemed incurred as and when funded in accordance with the terms of such delayed draw term loan facility. In addition, the Borrower may elect to use clause (iii) of the definition of Available Incremental Amount regardless of whether the Borrower has capacity under clauses (i) or (ii) of the definition of Available Incremental Amount. Further, the Borrower may elect to use clause (iii) of the definition of Available Incremental Amount prior to using clauses (i) or (ii) of the definition of Available Incremental Amount, and if both clause (iii) and clauses (i) or (ii) of the definition of Available Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the definition of Available Incremental Amount shall be 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.
Appears in 1 contract
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(ai) with respect to any Incremental Commitments, (xA) no Event of Default shall exist after giving effect to such Incremental Commitments; provided thatprovided, with respect to any that in the case of Incremental Amendment the primary purpose of which is Commitments incurred to finance an a permitted acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause Investments (4)(a)(xincluding in any event a Limited Condition Acquisition) shall be that no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.01(18.1(a), (b), (h) or, solely with respect to the Borrower, Section 8.01(6and (i) shall exist after giving effect on (i) the date that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, or, (ii) in the case of Incremental Commitments incurred to finance a Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (i) or (ii), such Incremental Commitments, condition regarding an absence of such an Event of Default and (y) the requirement that the representations and warranties of the Borrower contained in Article V or any other Loan Document shall have to be true made and correct accurate 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 subject to customary “materiality,” “Material Adverse EffectSungard” or similar 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, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)“certain funds” limitations;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (ciii) below) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of this Section 2.14(4)$1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below);
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2iii) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of the Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by HoldingsTerm Loans, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments and Other Term Loans shall not exceed (as defined in the First Lien Credit AgreementA) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an amount equal to the portion greater of (x) $140,000,000 and (y) 100% of LTM Consolidated EBITDA of the Facility Borrower and its Restricted Subsidiaries, plus (B) up to be replaced with an additional amount of Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans, (i) so long as the Consolidated First Lien Leverage Ratio (determined on a Pro Forma Basis) is equal to or refinanced byless than 4.50:1.00, (ii) to the extent such Incremental Indebtedness consists of Other Term Loans that are secured on a junior lien basis and not subordinated in right of payment to the Term Loans and the Revolving Loans, (x) so long as the Consolidated Senior Secured Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 5.50:1.00 as of the last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (y) in the case of any Incremental Term Loans, Incremental Revolving Loans, Other Commitments and/or Other Term Loans that effectively replace incurred to finance any Loan permitted acquisition or other Investment that is terminated or cancelled in accordance with secured only by Liens permitted under Section 3.077.2, an amount equal so long as, after giving effect to such incurrence, the portion Consolidated Senior Secured Leverage Ratio does not exceed the greater of (I) 5.50:1.00 as of the relevant terminated last day of the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (II) the Consolidated Senior Secured Leverage Ratio immediately prior to such acquisition or cancelled Loan, plus
other Investment or (Ciii) solely to the extent not such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in duplication right of prepaymentspayment to the Term Loans and the Revolving Loans, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is equal to or repurchases less than 6.00:1.00 as of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases the last day of Loans or Permitted Incremental Equivalent Debt by Holdings, the most recently ended period of four Fiscal Quarters of the Borrower or any of its Subsidiaries, for which financial statements are available and (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreementcase of any Incremental Term Loans, Incremental Revolving Loans, Other Commitments and/or Other Term Loans incurred to finance any permitted acquisition or other Investment that is secured only by Liens permitted under Section 7.2, so long as, after giving effect to such incurrence, the Consolidated Leverage Ratio does not exceed the greater of (I) or Permitted Incremental Equivalent Debt (6.00:1.00 as defined in of the First Lien Credit Agreement) consisting last day of revolving credit commitments the most recently ended period of four Fiscal Quarters of the Borrower for which financial statements are available and (zII) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness the Consolidated Leverage Ratio immediately prior to such acquisition or other IndebtednessInvestment, in each case determined on the applicable Incremental Facility Closing Date, after giving effect to any such incurrence or issuance on a Pro Forma Basis, and, in each case, previously with respect to any Incremental Revolving Commitment or Incremental Term Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder, and excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement, but limited to the actual cash amount paid by Borrower or its Restricted Subsidiaries in connection with such buyback plus (2) an amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and (y) any Incremental Term Loans, Other Term Loans, Incremental Equivalent Debt and permanent voluntary commitment reductions of the Revolving Commitments, including any Incremental Revolving Commitments (less all such reductions applied to increase the prepayment, redemption or repurchase of corresponding incremental facility basket under any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepaymentother than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness (in each case, redemption or repurchase was not previously included in clause to the extent originally incurred under the “free and clear” prong); (it being understood that (x) above; other thanamounts under clause (B) (to the extent compliant therewith) shall be deemed to have used prior to utilization of amounts under clause (A) or (C), in each case (y) loans may be incurred under both clauses (xA), (B) and (zC) above, and proceeds from any such incurrence under such clauses (A), from proceeds (B) and (C) above, may be utilized in a single transaction by first calculating the incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of long-term doubt, any such incurrence under clause (A) or (C) shall not be given pro forma effect for purposes of determining the Consolidated First Lien Leverage Ratio, Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) in such single transaction and (z) the Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, at the time of such redesignation, the Borrower would be permitted to incur the aggregate principal amount of Indebtedness being so redesignated); and
(iv) to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Restatement Effective Date other than revolving credit facilities)changes to such legal opinion resulting from a change in law, plus
(D) an unlimited amount, so long as change in fact or change to counsel’s form of opinion reasonably satisfactory to the case of this clause (D) only,Administrative Agent.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) or waiver of each of the following conditions, together with any other conditions (subject to Section 1.07(10)):set forth in the Incremental Amendment:
(ai) (x) no Event Other than in the case of Default shall exist an Incremental Amendment and an Incremental Term Loan relating to the ▇▇▇▇▇▇▇ Acquisition, immediately before and after giving effect to such Incremental CommitmentsBorrowing and the application of the proceeds thereof, no Default or Event of Default shall have occurred and be continuing; provided thatprovided, that in connection with respect to any Incremental Amendment Commitments the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreementconsummate a Limited Condition Transaction, the requirement pursuant to condition under this clause (4)(a)(xi) shall be that (x) no Default or Event of Default shall have occurred at the Limited Conditionality Test Date and (y) no Event of Default under pursuant to Section 8.01(18.01(a), (b), (g) or, solely with respect to the Borrower, Section 8.01(6or (h) shall exist has occurred and is continuing after giving effect to such Incremental Commitments, and (y) the 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 “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)Facility; provided that, in connection with an acquisition or other Investment permitted hereunder, that the conditions in this clause (xi) and (other than the condition referenced in clause the proviso thereto in respect of 8.01(a), (yb), (g) or (h) unless waived by the Required Lenders in accordance with Section 10.02) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Loan Commitments or Incremental Revolving Credit Loans and Incremental Revolving Credit Commitments, as the case may be;
(provided, further, that, ii) Other than in the case of an acquisition Incremental Term Loan incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, immediately before and after giving effect to such Borrowing and the application of the proceeds thereof, all representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct in all material respects (other than those representations and warranties that are expressly qualified by a Material Adverse Effect or other Investment materiality, in which case such representations and warranties shall be true and correct in all respects after giving effect to such qualification and other than those representations and warranties that are expressly made as of an earlier specified date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier specified date); provided, however, that (A) in connection with any Incremental Facility the primary purpose of which is to consummate a purchase price in excess of $100.0 millionLimited Condition Transaction, the conditions contained in the proviso to condition under this clause (ii) shall be that (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect such representations and warranties are true and correct to the Borrower, Section 8.01(6) extent required above as of the Limited Conditionality Test Date and in clause (y) with respect to the Specified RepresentationsRepresentations are true and correct in all material respects (other than those Specified Representations that are expressly qualified by Material Adverse Effect or other materiality, in each case, which case such Specified Representations shall be true and correct in all respects after giving effect to such qualification and other than those Specified Representations that are expressly made as of an earlier specified date, in which case such Specified Representation shall be true and correct in all material respects as of such earlier specified date) at the time the relevant Limited Condition Transaction is consummated and the Incremental Loans are funded; provided that the conditions in this (ii) shall only be required whether or not to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Loan Commitments or Incremental Revolving Credit Loans and Incremental Revolving Credit Commitments, as the case may be; and (B) in connection with an Incremental Term Loan incurred to consummate the ▇▇▇▇▇▇▇ Acquisition, the condition under this clause (ii) shall be that the Specified ▇▇▇▇▇▇▇ Representations are true and correct in all material respects (other than those representations and warranties that are expressly qualified by Material Adverse Effect or other materiality, in which case such PersonsSpecified ▇▇▇▇▇▇▇ Representations shall be true and correct in all respects after giving effect to such qualification and other than those Specified ▇▇▇▇▇▇▇ Representations that are expressly made as of an earlier specified date, unless waived in accordance with Section 10.01)which case such Specified ▇▇▇▇▇▇▇ Representation shall be true and correct in all material respects as of such earlier specified date) at the time the ▇▇▇▇▇▇▇ Acquisition is consummated and the Incremental Term Loans in connection therewith are funded;
(biii) each Incremental Commitment shall be in an aggregate principal a minimum amount that is not less than of $5.0 million (5,000,000 or a whole multiple of $100,000 in excess hereof; provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the applicable limit set forth in clause (c) of this Section 2.14(42.17(a));
(civ) [reserved];
(v) [reserved]; and
(vi) the aggregate principal amount of Incremental Loans and Incremental Commitments Borrower shall not, together with deliver or cause to be delivered any customary amendments to the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed Loan Documents or other documents reasonably requested by the sum of:
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower applicable Agent or any of its Subsidiaries at or below par, Additional Lender in which case the amount of voluntary prepayments of connection with any such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,transaction.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreementin connection with a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x4)(a)(i) shall be that (x) no Event of Default shall exist on the LCT Test Date and (y) no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) shall exist after giving effect to such Incremental Commitments), and (yii) the 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, date and 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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4));
(c) the aggregate outstanding principal amount of Incremental Term Loans and Incremental Commitments shall notnot exceed the sum of the following:
(I) an amount that, together with the aggregate principal amount of Permitted Incremental Equivalent DebtIndebtedness incurred pursuant to Section 7.02(b)(12), does not exceed the sum of:greater of (i) $30,000,000 and (ii) 3.0% of Total Assets (or after the Adjusted EBITDA Grower Trigger Date, 30.0% of Adjusted EBITDA) as of (or for) the most recently ended Test Period (calculated on a pro forma basis) of the Borrower and its Subsidiaries; plus
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2II) the aggregate principal amount, without duplication, of (including, as applicable, prepayments, terminations, redemptions and purchases of such Indebtedness at or below par (in each case, in the principal amount of the Indebtedness or revolving commitments subject thereto) (wthe “First Lien Voluntary Prepayments Amount”) voluntary prepayments, redemptions or repurchases of Incremental Closing Date Term Loans and Permitted Incremental Equivalent Debt any other Indebtedness secured by the Collateral on a pari passu basis with the Obligations (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First other than Second Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, Term Loans and (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of revolving Indebtedness, accompanied by a permanent commitment reduction) (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (z), so long as such prepayment, redemption or repurchase was I) shall not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from have been funded with proceeds of long-term Indebtedness (other than revolving credit facilitiesIndebtedness)), plus
(B) (xIII) 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 (yII) 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
the amount available under this clause (C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2c), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans “Free and Permitted Clear Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,Amount”.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Holdings or any Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions condition in clause (x) and in this clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be (provided, further, provided further that, in the case of an any such acquisition or other Investment with a purchase price in excess of $100.0 millionInvestment, the conditions condition contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in this clause (y) with respect to Specified Representations, in each case, Representations shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Commitments shall notnot at any time, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
of (A) (1) $500.0 million plus any General Debt Basket Reallocated the Incremental Starter Amount less the First Lien Incremental Usage Amount in effect at such time plus (2) the aggregate amount of (wx) voluntary prepaymentsprepayments of Term Loans, redemptions or repurchases of Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a consisting of revolving credit facilityfacilities) (including purchases of Incremental the Loans or Permitted Incremental Equivalent Debt by Holdings, the any Borrower or any of its Subsidiaries Subsidiary at or below par, in which case the amount of voluntary prepayments of such Incremental 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 case of such Incremental Term Loans or Permitted Incremental Equivalent Debt Debt, to the extent it was incurred in reliance on clause (A)(1) above, 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 (xy) voluntary permanent commitment reductions in respect of Revolving Commitments, Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent case of such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit AgreementDebt, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt extent it was incurred in reliance on clause (A)(1) above and secured by Liens on all or any a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Incremental Usage Amount Debt, in the case of Obligations under this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; Agreement and other than, in each case under clauses (w), (yx) and (zy), from proceeds of long-term Indebtedness (other than revolving credit facilitiesIndebtedness), plus
plus (B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (DB) 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, the Secured Net Leverage Ratio or the Total Net Leverage Ratio shall be calculated without giving effect to such amounts incurred (or commitments obtained) in reliance on the foregoing clause (A); provided, further, for the avoidance of doubt, to the extent the proceeds of any Incremental Loans are being utilized to repay Indebtedness, such calculations shall give pro forma effect to such repayments) (the amount available under clauses (A) and (B), the “Available Incremental Amount”). 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 make an election, then the Lead Borrower will be deemed to have elected to use clause (B) of the Available Incremental Amount.
Appears in 1 contract
Sources: Credit Agreement (Chobani Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(a) (xi) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition a Permitted Acquisition or any other Investment permitted by this AgreementAgreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the requirement pursuant to Equity Interests of, another Person, this clause (4)(a)(xi) shall may be that no Event waived or omitted by Incremental Lenders holding more than 50% of Default the aggregate Incremental Commitments under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and Amendment;
(yii) the representations and warranties of the Borrower contained each Loan Party set forth in Article V or any and in each other Loan Document shall be true and correct in all material respects on and as of the date Incremental Facility Closing Date with the same effect as though made on and as of such Incremental Amendment (provided thatdate, except to the extent that such representations and warranties specifically refer 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, further, that, 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); provided further that, in connection with an acquisition respect to any Incremental Amendment the primary purpose of which is to finance a Permitted Acquisition or any other Investment permitted hereunderby this Agreement constituting an acquisition of assets constituting a business unit, line of business or division of, or all or substantially all of the conditions in Equity Interests of, another Person, this clause (xii) and in clause (y) shall only be required other than with respect to the extent requested Specified Representations) may be waived or omitted (or the scope or content of any representation and warranty modified) by the Persons providing Incremental Lenders holding more than 50% of the applicable Incremental Loans and aggregate Incremental Commitments (provided, further, that, in 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)Incremental Amendment;
(biii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 25,000,000 if such amount represents all remaining availability under the limit set forth in clause the next sentence) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (c) of this Section 2.14(4)provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence);
(civ) the aggregate principal amount of the Incremental Term Loans and the Incremental Revolving Credit Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, not exceed the sum of:
(A) $150,000,000 in the aggregate pursuant to this clause (1A) $500.0 million plus any General Debt Basket Reallocated Amount less or (B) at the Borrower’s option, up to an amount of Incremental Term Loans or Incremental Revolving Credit Commitments so long as the Consolidated First Lien Incremental Usage Amount plus (2) Net Leverage Ratio is no more than 4.25 to 1.00 for the aggregate amount of (w) voluntary prepaymentsTest Period most recently ended, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than after giving effect to any Permitted Incremental Equivalent Debt that is such incurrence on a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by HoldingsPro Forma Basis, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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)and, in each case, only with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the extent such maximum amount of Loans available thereunder (or if the Incremental Facility will rank junior in right of security with the Revolving Credit Loans and the Term Loans, up to an amount of Incremental Term Loans or 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 (so long as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in Total Net Leverage Ratio is no more than 5.50 to 1.00 for the First Lien Credit Agreement) consisting of revolving credit commitmentsTest Period most recently ended, after giving effect to any such incurrence on a Pro Forma Basis, and, in each case, with respect to any Incremental Revolving Credit Commitment, assuming a borrowing of the maximum amount of Loans available thereunder) (such amounts under this clause (A) and (B), the “Available Incremental Amount”); and
(v) (A) to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of reasonably requested by the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by HoldingsAdministrative Agent, the Borrower 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 any change to counsel’s form of its Subsidiariesopinion reasonably satisfactory to the Administrative Agent) and (zii) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied reaffirmation agreements and/or such amendments to the prepayment, redemption or repurchase of any 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 Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not provided in duplication of prepaymentsthe applicable Incremental Amendment, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (such other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, conditions as the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving and the Lenders providing such Incremental Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,may agree.
Appears in 1 contract
Sources: Credit Agreement (Bright Horizons Family Solutions Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V or any other Loan Document of this Agreement shall be true and correct in all material respects on and as (or, in the case 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 language 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 (after giving effect to any qualification therein) in all material respects on such (or in all respects, as applicable) as of the respective datesdate or for the respective period, as the case may be); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, that in the case of an acquisition Incremental Commitments incurred to finance a Permitted Acquisition or other Investment with Investments permitted under Section 7.02(o) or (s) (each, a purchase price in excess of $100.0 million“Limited Condition Transaction”), the conditions contained in the proviso to clause (x) such requirement shall be subject to customary “SunGard” conditionality (including waiver or non-requirement of (1) the representations and warranties hereunder and (2) the absence of a Default or Event of Default (other than with respect to no a Default or Event of Default under Section 8.01(18.01(a) or, solely with respect to the Borrower, Section 8.01(6or (f)) and (y) the Consolidated Secured Net Leverage Ratio set forth in clause (yiii)(C) with respect to Specified Representationsbelow may, at the Borrowers’ election, be tested at the time such Limited Condition Transaction is committed and will not be tested upon consummation thereof, in each case, shall be required whether or not requested case if otherwise agreed by the Incremental Lenders providing such Persons, unless waived in accordance with Section 10.01)Incremental Commitments;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided 10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that such amount may be is not less than $5.0 million if such amount represents all remaining availability under the limit set forth 5,000,000 and shall be in clause (c) an increment of this Section 2.14(4))$1,000,000;
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments shall not exceed (wA) voluntary prepayments, redemptions an amount equal to $50,000,000 (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(A) or repurchases (ii)(A)) plus (B) up to an additional amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as on and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases as of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any date of its Subsidiaries at or below par, in which case the amount of voluntary prepayments incurrence of such Incremental Term Loans or Permitted Incremental Equivalent Debt shall Commitments, the Consolidated Secured Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be deemed not to exceed financed (in whole or in part) with the actual purchase price proceeds of such Loans or Permitted the Incremental Equivalent Debt below par)Loan, in each case, only to and assuming all previously established and simultaneously established Incremental Revolving Loan Commitments are fully drawn and excluding the extent cash proceeds of (x) any borrowing under any such Incremental Revolving Loan Commitments, (y) any Incremental Term Loans and (z) any other Indebtedness that is incurred substantially concurrently therewith) is no more than 3.75 to 1.00; and
(iv) the Loan Parties shall demonstrate compliance with the financial covenant set forth in Section 7.11 (determined on a Pro Forma Basis and assuming all previously established and simultaneously established Incremental Revolving Loan Commitments are fully drawn and excluding the cash proceeds of (x) any borrowing under any such Incremental Revolving Loan Commitments, (y) any Incremental Term Loans and (z) any other Indebtedness that is incurred substantially concurrently therewith) as of the most recent fiscal quarter end for which financial statements have been delivered or Permitted Incremental Equivalent Debt was incurred were required to be delivered pursuant to Section 4.01 or 6.01.
(v) for purposes of the calculations in reliance on clause clauses (A)(1iii) and (iv) above, (xA) voluntary permanent commitment reductions in with respect to any Incremental Commitments, assuming a borrowing of Incremental Revolving Commitments the maximum amount of Loans available thereunder, (as defined in the First Lien Credit AgreementB) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing proceeds thereof are used to repay Indebtedness, Other Loans, Refinancing pro forma effect shall be given to such repayment of Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely Indebtedness incurred under clause (iii)(A) above shall be available at all times and not subject to the extent not in duplication of prepaymentsany ratio test, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of whether incurred simultaneously with amounts under clause (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreementiii)(C) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,otherwise.
Appears in 1 contract
Sources: Credit Agreement (Blucora, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(a) (xi) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause ;
(4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (yii) the representations and warranties of the Borrower contained each Loan Party set forth in Article V or any and in each other Loan Document shall be true and correct in all material respects on and as of the date Incremental Facility Closing Date with the same effect as though made on and as of such Incremental Amendment (provided thatdate, except to the extent that such representations and warranties specifically refer 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, further, that, 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); provided further that, in connection with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted hereunderby this Agreement, the conditions in this clause (xii) and in clause (y) shall only be required other than with respect to the extent requested Specified Representations as they relate to the target of such acquisition (conformed as reasonably necessary for such acquisition)) may be waived or omitted by the Persons providing Incremental Lenders holding more than 50% of the applicable Incremental Loans and aggregate Incremental Commitments (provided, further, that, in 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)Incremental Amendment;
(biii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 10,000,000 if such amount represents all remaining availability under the limit set forth in clause (civ) of this Section 2.14(42.14(d)) and each Incremental Revolving Credit Commitment shall be in an aggregate principal amount that is not less than $10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $10,000,000 if such amount represents all remaining availability under the limit set forth in clause (iv) of this Section 2.14(d));
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2iv) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of the Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by HoldingsTerm Loans, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental Loans or Permitted Revolving Credit Commitments and 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1A) above, $35,000,000 minus (x) voluntary permanent commitment reductions in respect the aggregate amount of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause Section 7.03(k)(A)(i)(x) and (A)(1y) above or any First the Incremental Second Lien Incremental Usage Amount Debtplus (B) at its option, additional amounts of Incremental Term Loans or Incremental Revolving Credit Commitments so long as, in the case of this clause (z)B) only, so long as such prepayment(1) with respect to Incremental Term Loans, redemption or repurchase was not previously included in clause Incremental Revolving Credit Commitments secured by the Collateral on a pari passu basis with the Term B Loans and the Revolving Credit Facility, the First Lien Leverage Ratio is no more than 4.00 to 1.00 and (w2) or clause (y) above; other thanwith respect to Incremental Term Loans and/or Incremental Revolving Credit Commitments that are secured by the Collateral on a junior basis to the Term B Loans and the Revolving Credit Facility, the Total Leverage Ratio is no more than 6.00 to 1.00, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an amount equal to the portion as of the Facility to be replaced with (or refinanced by) such Incremental Loans and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion last day of the relevant terminated or cancelled LoanTest Period most recently ended, plus
(C) solely after giving effect to the extent not in duplication of prepaymentsany such incurrence on a Pro Forma Basis, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtednessand, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other thanwith respect to any Incremental Revolving Credit Commitment, in each case under clauses (x) assuming a borrowing of the maximum amount of Loans available thereunder and (zy) the cash proceeds from such Incremental Term Loans and Incremental Revolving Loans shall not be netted against Indebtedness for purposes of the calculation of First Lien Leverage Ratio or Total Leverage Ratio, as applicable, related to such incurrence), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus;
(DA) the aggregate amount of any Incremental Revolving Credit Commitments, when taken together with all other Incremental Revolving Credit Commitments to date, shall not exceed an unlimited amountamount equal to fifty percent (50%) of Consolidated EBITDA for the most recent period of four (4) consecutive fiscal quarters for which financial statements are internally available and (B) unless otherwise agreed by the Administrative Agent in its reasonable discretion, so long there shall be no more than three tranches at any time outstanding under the Revolving Credit Facility and Incremental Revolving Credit Commitments; and
(vi) such other conditions as in the case of this clause (D) only,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 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 (subject to Section 1.07(10)conditions):
(a) (xi) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreementa Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x4)(a)(i) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, ) and (yii) the 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, date and 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); provided that, that in connection with an acquisition or other Investment permitted hereundera Limited Condition Transaction, (x) the conditions in clause (xi) and in clause (ii) above shall be tested (if applicable) solely on the applicable LCT Test Date as selected by the Borrower pursuant to Section 1.07(11) and (y) the conditions in clause (i) and in clause (ii) shall only be required to be satisfied to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (providedor Incremental Revolving Loans and Incremental Revolving Commitments, further, that, in as 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)may be;
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (or such lesser amount to which the Administrative Agent (or in the case of the Priority Revolving Facility, Priority Revolving Agent) may reasonably agree) (provided that such amount may be less than $5.0 million (or such lesser amount) if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) 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:of (the amount available under clauses (i) through (iii) below, the “Available Incremental Amount”):
(i) the sum of (I) the greater of (the “Free and Clear Incremental Amount”) (A) $46.9 million and (1B) $500.0 million plus any General Debt Basket Reallocated Amount less 100.0% of Consolidated EBITDA of the First Lien Incremental Usage Amount Borrower and its Restricted Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis), plus (2II) [reserved], less (III) [reserved], plus (IV) the aggregate amount principal amount, without duplication, of (wA) voluntary prepayments, redemptions or repurchases of Closing Date Term Loans (including 2021, 2022 Incremental Term Loans), C2 Incremental Term Loans, Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Closing Date Term Loans (including 2021, 2022 Incremental Term Loans), C2 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 which each case secured on a pari passu basis with the amount Obligations (without regard to the control of voluntary prepayments of such Incremental 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 parremedies), in each case, only to the extent such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (xB) voluntary permanent commitment reductions in respect of the Closing Date Revolving Facility, Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, case secured on a pari passu basis with the Obligations (without regard to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) control of the First Lien Credit Agreementremedies), (yC) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) [reserved] and (zD) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other IndebtednessIndebtedness (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 casecase secured on a pari passu basis with the Obligations (without regard to the control of remedies), previously applied to the (a) prepayment, redemption or repurchase of any Closing Date Term Loans (including 2021, 2022 Incremental Term Loans), C2 Incremental Term Loans, Incremental Term Loans and Permitted Incremental Equivalent Debt incurred (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) or (b) voluntary permanent commitment reductions in reliance on clause respect of the Closing Date Revolving Facility, Incremental Revolving Commitments or Permitted Incremental Equivalent Debt consisting of revolving credit commitments (A)(1) above provided that the relevant prepayment, redemption, repurchase or any First Lien Incremental Usage Amount Debt, in the case of commitment reduction under this clause (z), so long as such prepayment, redemption or repurchase was IV) shall not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from have been funded with proceeds of long-term Indebtedness (other than revolving credit facilitiesIndebtedness)), plus
(Bii) (xI) 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 (yII) 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
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(Diii) an unlimited amount, so long as in the case of this clause (Diii) 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 for the Test Period most recently ended 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 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),
(II) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement and for the avoidance of doubt is not incurred pursuant to clause (III) below, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 5.75 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred), or
(III) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured (or, solely for purposes of clause (2) under the definition of “Permitted Incremental Equivalent Debt”, Permitted Incremental Equivalent Debt that is secured by assets of the Borrower or any Restricted Subsidiary that do not constitute Collateral), either (1) the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 6.00 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) or (2) to the extent such Incremental Loans or Incremental Revolving 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, then the Borrower will be deemed to have elected to use clause (iii) of the definition of “Available Incremental Amount.” In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the definition of “Available Incremental Amount” shall be 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.
Appears in 1 contract
Sources: First Lien Credit Agreement (Convey Health Solutions Holdings, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(ai) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments and the application of proceeds of any Incremental Loans borrowed thereunder (provided that, that with respect to any Incremental Amendment the primary purpose of which is Commitments requested with respect to finance an acquisition or other Investment permitted by this Agreementany Limited Condition Acquisition, the such requirement pursuant to this clause (4)(a)(x) shall be that no limited to the absence of an Event of Default on the applicable LCA Test Date and the absence of a Event of Default under Section 8.01(18.01(a) or, solely with respect to and (f) at the Borrower, Section 8.01(6) shall exist after giving effect to time of the funding of such Incremental Commitments, Loan) and (y) the 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, 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, date and 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); provided that, that in the case of any Incremental Commitments requested in connection with an acquisition a Limited Condition Acquisition or the financing of a Permitted Acquisition or other Investment permitted hereunder, only the conditions in clause (x) making and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% accuracy of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in 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 there being no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(68.01(a) and in clause (yf) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01required);
(bii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million 1,000,000 (provided that such amount may be less than $5.0 million 1,000,000 if such amount represents all remaining availability under the limit set forth in clause (civ) of this Section 2.14(42.14(d));
(ciii) the creation or provision of any Incremental Facility or Incremental Loans shall not require the approval of any existing Lender other than any existing Lender providing all or part of any Incremental Commitment; provided that, with respect to any Incremental Facility or Incremental Loans which are secured on a junior basis to any Lien on the Collateral securing the Obligations and provided by lenders other than the existing Lenders, such Incremental Facility or Incremental Loans shall be subject to a Junior Intercreditor Agreement and such other lenders shall be determined by the Borrower (provided that such other lenders shall be selected in consultation with the Required Lenders); and
(iv) the aggregate principal amount of Incremental Loans and Incremental Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, not exceed the sum of:
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less Incremental Amounts available at the First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments time of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,incurrence.
Appears in 1 contract
Sources: Credit Agreement (Abacus Life, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 conditions:
(i) subject to Section 1.07(101.09(f)):
(a) (x) , no Default or Event of Default shall exist or would exist after giving effect to such Incremental Term Commitments; provided that;
(ii) subject to Section 1.09(f), with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained each Loan Party set forth in Article V or any IV and in each other Loan Document shall be true and correct in all material respects on and as of the date Incremental Facility Closing Date with the same effect as though made on and as of such Incremental Amendment (provided thatdate, except to the extent that such representations and warranties specifically refer 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, further, provided that,
(i) 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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause dates and (xii) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default representation and warranty under Section 8.01(1) or4.05(b), solely with respect a Material Adverse Effect that 91 previously existed but that has ceased to exist on the Borrower, Section 8.01(6) date that such representation and in clause (y) with respect to Specified Representations, in each casewarranty is being made, shall be required whether or not requested by result in such Persons, unless waived in accordance with Section 10.01)representation and warranty being untrue;
(biii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 25,000,000 if such amount represents all remaining availability under the limit set forth in clause (civ) of this Section 2.14(4)below);
(civ) the aggregate principal amount of the Incremental Term Loans and Incremental Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, not exceed the sum of:Available Incremental Amount; and
(A) to the extent reasonably requested by the Administrative Agent, the receipt by the Administrative Agent of (1) $500.0 million plus any General Debt Basket Reallocated Amount less customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the First Lien Incremental Usage Amount plus 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 aggregate amount 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 (wB) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 provided in the applicable Incremental Amendment, such other conditions as the Borrowers and the Lenders providing such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Term Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,may agree.
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)conditions):
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments (provided that, with respect to any Incremental Amendment in connection with a Limited Condition Transaction, (1) if an LCT Election is made, no Event of Default shall have occurred and be continuing on the primary purpose LCT Test Date, and (2) upon the consummation of which is to finance an acquisition or other Investment permitted by this Agreementsuch Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) shall exist exist, in each case, after giving effect to such Incremental Commitments, ) and (y) the 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, date and 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); provided thatprovided, that in connection with an acquisition or other Investment permitted hereundera Limited Condition Transaction, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons non-Affiliated Lenders providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (providedor Incremental Revolving Loans and Incremental Revolving Commitments, further, that, in as 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)may be;
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that or such lesser amount to which the Administrative Agent may be less than $5.0 million reasonably agree or 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 $5.0 million (or such lesser amount to which the Administrative Agent may reasonably agree or if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) the incurrence of any Incremental Commitment shall be subject to the terms of the AAL, including (x) any Incremental Term Facility shall be bifurcated into separate Classes of First Out Term Loans (as defined in the AAL) and Last Out Term Loans (as defined in the AAL) pursuant to the terms of the AAL and (y) Incremental Revolving Commitments shall be provided by the AAL First Out Holders on a pro rata basis (provided that if existing AAL First Out Holders decline to provide such Incremental Revolving Commitments, such Incremental Revolving Commitments may instead be provided by the AAL Last Out Holders); and
(d) the aggregate principal amount of Incremental Term Loans and Incremental Revolving Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of (the amount currently available under clauses (A) through (C) below, the “Available Incremental Amount”):
(A) the sum of:
(A1) the greater of (i) $27.5 million and (ii) 75.0% of Consolidated EBITDA of the Borrower and the Subsidiaries for the most recently ended Test Period (calculated on a pro forma basis) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien amounts under this clause (4)(d)(A)(1), the “Free and Clear Incremental Usage Amount plus Amount”); plus
(2) the aggregate amount principal amount, without duplication, of (wx) 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 which case but limited to the amount of voluntary prepayments cash actually paid by Holdings, the Borrower or such Subsidiary), in each case secured on a pari passu basis with the Obligations (without regard to control of such remedies) and, in the case of any Incremental Term Loans or Permitted Incremental Equivalent Debt shall be deemed not to exceed Debt, incurred in reliance on the actual purchase price Free and Clear Incremental Amount and (y) voluntary prepayments (accompanied by corresponding permanent commitment reductions) in respect of such Loans the Closing Date Revolving Facility, Incremental Revolving Commitments or Permitted Incremental Equivalent Debt below par), in each case, only to the extent such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, secured on a pari passu basis with the Obligations (without regard to control of remedies) and, in the extent such case of any Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was consisting of revolving credit commitments, incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, Free and Clear Incremental Amount (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, provided that the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the relevant prepayment, redemption redemption, repurchase or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of commitment reduction under this clause (z), so long as such prepayment, redemption or repurchase was 2) shall not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from have been funded with proceeds of long-term Indebtedness (other than revolving credit facilitiesIndebtedness) (the amounts under this clause (4)(d)(A), the “Non-Ratio Based Incremental Amount”), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus[reserved],
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (DC) onlyonly (the “Ratio Based Incremental Amount”),
(1) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 5.50 to 1.00 (including in connection with a Permitted Acquisition or other Investment permitted hereunder) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Term Facility or Incremental Revolving Facility then proposed to be incurred),
(2) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement, the Secured Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 6.50 to 1.00 (including in connection with a Permitted Acquisition or other Investment permitted hereunder) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Secured Net Leverage Ratio without netting the cash proceeds from such Incremental Term Facility or Incremental Revolving Facility then proposed to be incurred), or
(3) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured, the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 6.50 to 1.00 (including in connection with a Permitted Acquisition or other Investment permitted hereunder) (provided that, in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Term Facility or Incremental Revolving Facility then proposed to be incurred). The Borrower may elect to use the Ratio Based Incremental Amount regardless of whether the Borrower has capacity under the Non-Ratio Based Incremental Amount. Further, the Borrower may elect to use the Ratio Based Incremental Amount prior to using the Non-Ratio Based Incremental Amount, and if both the Ratio Based Incremental Amount and the Non- Ratio Based Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use the Ratio Based Incremental Amount. In addition, any Indebtedness originally designated as incurred pursuant to the Non-Ratio Based Incremental Amount shall be automatically reclassified as incurred under the Ratio Based Incremental Amount at such time as the Borrower would meet the applicable leverage-based incurrence test on a pro forma basis.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this AgreementAgreement that is not conditioned upon obtaining third- party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunderhereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (provided, further, that, in the case of an any such acquisition or other Investment with a purchase price in excess of $100.0 20.0 million, the conditions contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4));; and
(c) the aggregate principal amount of Incremental Loans and Incremental Commitments shall not, together with not exceed the aggregate principal maximum amount of Permitted Incremental Equivalent Debt, exceed the sum of:
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less Indebtedness that can be incurred such that 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 2.00 to 1.00 (the “Available Incremental Usage Amount plus (2) Amount”); provided that for the aggregate amount avoidance of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each casedoubt, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase proceeds of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause are being utilized to repay Indebtedness (A)(1including any repayment, repurchase or refinancing of Indebtedness for which an irrevocable notice of repayment (or similar notice of repayment) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (zhas been delivered), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an amount equal calculations shall give pro forma effect to the portion of the Facility to be replaced with (or refinanced by) such Incremental Loans and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,repayments.
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):set forth in the Incremental Amendment:
(a) (xi) no Event of Default shall exist immediately before or after giving effect to such Incremental CommitmentsLoans; provided that, in connection with respect to any Incremental Amendment Commitment the primary purpose of which is to finance an acquisition a Permitted Acquisition or other Investment permitted by this AgreementPermitted Business Investment, the requirement pursuant to this clause an Event of Default (4)(a)(x) shall be that no other than an Event of Default under Section 8.01(1) or, solely with respect to the Borrower10.01(a), Section 8.01(610.01(b), Section 10.01(g) shall exist after giving effect to such Incremental Commitments, and or Section 10.01(h)) may exist;
(yii) the representations and warranties of the Borrower Loan Parties contained in Article V or any other the Loan Document Documents shall be true and correct in all material respects on immediately prior to and as of the date of after giving effect to such Incremental Amendment Loans; provided that (provided thatA) solely in the case of any Incremental Commitments the primary purpose of which is to finance a Permitted Acquisition or other Permitted Business Investment, only the Specified Representations (as opposed to all representations and warranties) shall be true and correct in all material respects, (B) to the extent that such representations and warranties specifically refer expressly relate to an earlier date, they such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that, any representation and warranty that is (C) to the extent such representations and warranties are qualified as to “materiality,” “Material Adverse Effect” or similar language language, such representations and warranties 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, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(biii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may 25,000,000 and shall be less than in an increment of $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4))5,000,000;
(civ) the aggregate outstanding principal amount of Incremental all Loans and Incremental Commitments shall not, together with made on the Effective Date plus the aggregate outstanding principal amount of Permitted all Incremental Equivalent DebtLoans shall in no event exceed $300,000,000, exceed the sum of:less any principal amounts prepaid pursuant to Section 3.04; and
(Av) (1) $500.0 million plus any General Debt Basket Reallocated Amount less after giving pro forma effect to the First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases making of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of under such Incremental 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)Amendment and, in each case, only to the extent such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans that effectively extend Commitments, the Maturity Date ofprimary purpose of which is to finance a Permitted Acquisition or any other Permitted Business Investment, the consummation of such Permitted Acquisition or refinanceother Permitted Business Investment, any Facilityas applicable, an amount (A) the Senior Secured Leverage Ratio as of the most recently ended fiscal quarter for which financial statements are in existence shall be equal to the portion of the Facility or less than 2.75 to be replaced with (or refinanced by) such Incremental Loans 1.00 and (yB) in the case of any Incremental Loans that effectively replace any Loan that is terminated PDP PV10 to Senior Secured Funded Debt Ratio shall be greater than or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely 1.10 to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,1.00.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Atlas Resource Partners, L.P.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):set forth in the Incremental Amendment:
(ai) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, the conditions of Section 3.03 shall be satisfied (it being understood that all references to “as of such Credit Date” or similar language in such Section 3.03 shall be deemed to refer to the Incremental Facility Closing Date); provided that, if the proceeds of such Incremental Commitment are used to finance a Limited Condition Transaction, (x) the references in Section 3.03(a)(ii) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties that would constitute customary “specified representations” of the Credit Parties (after giving effect to the Limited Condition Transaction) and (y) the representations and warranties of the Borrower contained references 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 “materiality,” “Material Adverse Effect” or similar language shall be true and correct (after giving effect Section 3.03(a)(iii) to any qualification therein) in all respects on such respective dates); provided that, in connection with an acquisition Default or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) Event of Default shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 refer to no Event of Default under Section 8.01(1) orat the time that the definitive transaction agreement for such Limited Condition Transaction is entered into and, solely with respect to on the Borrowerdate of the incurrence thereof, Section 8.01(6) both immediately before and in clause (y) with respect to immediately after giving effect thereto, no Specified Representations, in each case, Event of Default shall have occurred and be required whether continuing or not requested by such Persons, unless waived in accordance with Section 10.01)would result therefrom;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth Incremental Cap and each Revolving Commitment Increase shall be in clause an aggregate principal amount that is not less than $5,000,000 and NAI-1537241654v2 shall be in an increment of $1,000,000 (c) of this Section 2.14(4))provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the Incremental Cap;
(ciii) to the aggregate principal amount extent reasonably requested by Administrative Agent, receipt by Administrative Agent of Incremental Loans and Incremental Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
(A) customary legal opinions, board resolutions and officers’ certificates (1including solvency certificates) $500.0 million plus any General Debt Basket Reallocated Amount less consistent with those delivered on the First Lien Incremental Usage Amount plus Closing Date (2conformed as appropriate) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is changes to such legal opinions resulting from a revolving credit facility) (including purchases change in law, change in fact or change to counsel’s form of Incremental 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 Loans or Permitted Incremental Equivalent Debt shall be deemed not opinion reasonably satisfactory 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) Administrative Agent and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an amount equal reaffirmation agreements and/or such amendments to the portion Collateral Documents as may be reasonably requested by Administrative Agent in order to ensure that such Incremental Lenders are provided with the benefit of the Facility to be replaced with (or refinanced by) such Incremental Loans and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien applicable Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,Documents.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Priority Technology Holdings, Inc.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):set forth in the Incremental Amendment:
(ai) (x) no Event of Default shall exist after giving effect to such Incremental Commitments, the conditions of Section 4.02 shall be satisfied (it being understood that all references to “the date of such Borrowing” or similar language in such Section 4.02 shall be deemed to refer to the Incremental Amendment Date); provided provided, that, such Incremental Amendment may include a waiver by the Incremental Lenders party thereto of the condition set forth in Section 4.02(c) and, in connection with respect to any Incremental Amendment Commitment, the primary purpose of which is to finance an acquisition a Permitted Acquisition, a waiver in full or in part of the conditions set forth in clauses (a) and (b) (other Investment permitted by this Agreement, the requirement pursuant than with respect to this clause (4)(a)(x) shall be that no any Event of Default under Section 8.01(18.01(a) or, solely with respect to the Borrower, or (f)) of Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);4.02
(bii) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million 10,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 10,000,000 if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(42.12(d)(iii));
(ciii) (A) after giving Pro Forma Effect to the making of Incremental Loans under such Incremental Amendment, the Senior Secured Net Leverage Ratio does not exceed 4.00 to 1.00 (and for purposes of such calculation, all Incremental Equivalent Debt shall be deemed to be secured by the Collateral whether or not so secured); or (B) together with the Incremental Loans made under such Incremental Amendment, the aggregate principal amount of Incremental Loans and Incremental Commitments shall not, together with the aggregate principal amount of Permitted Incremental Equivalent Debt, exceed the sum of:
made under this clause (AB) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1i)(B) above of Section 2.12(g)) does not exceed (i) $250,000,000 plus (ii) the principal amount of any voluntary prepayments of Loans (to the extent not made with the proceeds of Indebtedness (other than Indebtedness under the ABL Facilities or extensions of credit under any First Lien other revolving credit or similar facility); provided, that, it is understood that Incremental Usage Amount Debt, in the case of this Loans may be incurred under either clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (wA) or clause (yB) aboveas selected by the Borrower in its sole discretion, including by designating any portion of Incremental Commitments in excess of an amount permitted to be incurred under clause (A) at the time of such incurrence as incurred under clause (B)); other thanand
(iv) to the extent reasonably requested by the Administrative Agent, in each case under clauses receipt by the Administrative Agent of (w)A) customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the Closing Date (yconformed as appropriate) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities)changes to such legal opinions resulting from a change in law, plus
change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent and (B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an amount equal reaffirmation agreements and/or such amendments to the portion 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 Facility to be replaced with (or refinanced by) such Incremental Loans and (y) in the case of any Incremental Loans that effectively replace any applicable Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,Documents.
Appears in 1 contract
Sources: Term Loan Credit Agreement (Mattress Firm Holding Corp.)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments 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 $100.0 million, the conditions contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) 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 First Second Lien Incremental Usage Amount (for the avoidance of doubt, it being agreed that as of the Third Amendment Effective Date, no Incremental Loans or Incremental Commitments have been incurred pursuant to this clause (1)) plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Term Loans or Permitted Incremental Equivalent Debt by Holdings, 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 or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1clause (A)(1) of the First Lien Credit Agreementabove, (y) voluntary prepayments, redemption or repurchase of First Second Lien Incremental Usage Amount Debt (including purchases of First Second Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any 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 First Second Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities); provided, that for the avoidance of doubt, this clause (A) shall not give credit to any prepayment of Closing Date Term Loans with the proceeds of, or by the conversion into, Term B Loans, 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, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Term Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries), (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Term Loans and Permitted Incremental Equivalent DebtDebt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility), in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities)) provided, that for the avoidance of doubt, this clause (C) shall not give credit to any prepayment of Closing Date Term Loans with the proceeds of, or by the conversion into, Term B Loans, plus
(D) an unlimited amount, so long as in the case of this clause (D) only,
Appears in 1 contract
Effectiveness of Incremental Amendment. The obtaining of Other Commitments, the making of Other Term Loans, the effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof of such Incremental Amendment (or, in the case of Other Commitments and Other Term Loans, on the date of the extension of such commitments or the incurrence or issuance of such Other Term Loans, as applicable) (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(ai) with respect to any Incremental Commitments, (xA) no Event of Default shall exist after giving effect to such Incremental Commitments; provided thatprovided, with respect to any that in the case of Incremental Amendment the primary purpose of which is Commitments incurred to finance an a permitted acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause Investments (4)(a)(xincluding in any event a Limited Condition Acquisition) shall be that no Event of Default (in the case of Limited Condition Acquisitions, as determined in accordance with Section 1.7) under Section 8.01(18.1(a), (b), (h) or, solely with respect to the Borrower, Section 8.01(6and (i) shall exist after giving effect on (i) the date that the Borrower or the applicable Restricted Subsidiary consummates such permitted acquisition or other permitted Investments, or, (ii) in the case of Incremental Commitments incurred to finance a Limited Condition Acquisition, on the LCA Test Date; provided, that the applicable Incremental Lenders may waive, in each case of clauses (i) or (ii), such Incremental Commitments, condition regarding an absence of such an Event of Default and (y) the requirement that the representations and warranties of the Borrower contained in Article V or any other Loan Document shall have to be true made and correct accurate 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 subject to customary “materiality,” “Material Adverse EffectSungard” or similar 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, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)“certain funds” limitations;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (ciii) below) and each Incremental Revolving Commitment shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of this Section 2.14(4)$1,000,000 (provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in clause (iii) below);
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2iii) the aggregate amount of the Incremental Term Loans, the Incremental Revolving Commitments and Other Term Loans shall not exceed (wA) voluntary prepaymentsan amount equal to $100,000,000 (minus the aggregate amount of Indebtedness incurred pursuant to Section 2.23(d)(iii)(A) of the Second Lien Credit Agreement), redemptions or repurchases plus (B) up to an additional amount of Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans, (i) so long as the Consolidated First Lien Leverage Ratio (determined on a Pro Forma Basis) is equal to or less than 4.40:1.00, (ii) to the extent such Indebtedness consists of Other Term Loans that are secured on a junior lien basis and not subordinated in right of payment to the Term Loans and Permitted Incremental Equivalent Debt the Revolving Loans, so long as the Consolidated Senior Secured Leverage Ratio (other determined on a Pro Forma Basis) is equal to or less than any Permitted Incremental Equivalent Debt 5.50:1.00 or (iii) to the extent such Indebtedness consists of Other Term Loans that are unsecured or secured on a junior lien basis and subordinated in right of payment to the Term Loans and the Revolving Loans, so long as the Consolidated Leverage Ratio (determined on a Pro Forma Basis) is a revolving credit facility) (including purchases equal to or less than 6.00:1.00 as of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the last day of the most recently ended period of four fiscal quarters of the Borrower for which financial statements are available, determined on the applicable Incremental Facility Closing Date, after giving effect to any such incurrence or any of its Subsidiaries at or below parissuance on a Pro Forma Basis, in which case the amount of voluntary prepayments of such Incremental 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)and, in each case, only with respect to any Incremental Revolving Commitment or Incremental Term Commitment established at such time, assuming a borrowing of the maximum amount of Loans available thereunder, and excluding the cash proceeds of any such Incremental Term Loans, Incremental Revolving Commitments, Other Commitments and/or Other Term Loans that are being incurred for the purposes of netting; provided that to the extent the proceeds thereof are used to repay Indebtedness, such Incremental Loans repayment of Indebtedness shall be calculated on a Pro Forma Basis and subject to other customary pro forma adjustments, including, in connection with an investment, plus (C) (1) the amount of all debt buybacks conducted under this Agreement and under the Second Lien Credit Agreement, but limited to the actual cash amount paid by Borrower or Permitted Incremental Equivalent Debt was incurred its Restricted Subsidiaries in reliance on clause connection with such buyback plus (A)(12) abovean amount equal to all voluntary prepayments of, in each case, without duplication, (x) the Loans and the Second Lien Term Facility Indebtedness and (y) any Incremental Term Loans, Other Term Loans, Second Lien Incremental Term Loans, Second Lien Other Term Loans, Incremental Equivalent Debt or Second Lien Incremental Equivalent Debt and permanent voluntary permanent commitment reductions in respect of the Revolving Commitments, including any Incremental Revolving Commitments (as defined in less all such reductions applied to increase the First corresponding incremental facility basket under the Second Lien Credit Agreement) or Permitted Term Facility, Second Lien Incremental Equivalent Debt or Incremental Equivalent Debt), other than voluntary prepayments and voluntary commitment reductions to the extent funded or replaced by a substantially contemporaneous refinancing with long-term indebtedness (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was originally incurred in reliance on Section 2.14(4)(c)(A)(1under the “free and clear” prong); (it being understood that (x) of the First Lien Credit Agreement, amounts under clause (yB) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase extent compliant therewith) shall be deemed to have used prior to utilization of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on amounts under clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (wA) or clause (y) above; other than, in each case under clauses (wC), (y) and loans may be incurred under both clauses (zA), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepaymentsabove, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2and proceeds from any such incurrence under such clauses (A), (B) and (C) above, may be utilized in a single transaction by first calculating the aggregate amount incurrence under clause (B) above and then calculating the incurrence under clause (A) or (C) above and, for the avoidance of doubt, any such incurrence under clause (xA) voluntary prepayments, redemptions or repurchases (C) shall not be given pro forma effect for purposes of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, determining the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the Consolidated First Lien Credit AgreementLeverage Ratio, Consolidated Senior Secured Leverage Ratio and/or Consolidated Leverage Ratio, as applicable, for purposes of effectuating the incurrence under clause (B) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments such single transaction and (z) voluntary prepaymentsthe Borrower may redesignate any such Indebtedness originally incurred pursuant to clause (A) or (C) as incurred pursuant to clause (B) if, redemptions or repurchases at the time of any Credit Agreement Refinancing Indebtednesssuch redesignation, Other Loans, Refinancing the Borrower would be permitted to incur the aggregate principal amount of Indebtedness or other Indebtedness, in each case, previously applied being so redesignated); and
(iv) to the prepaymentextent reasonably requested by the Administrative Agent, redemption or repurchase receipt by the Administrative Agent of any Loans customary legal opinions, board resolutions and Permitted Incremental Equivalent Debt, in officers’ certificates consistent with those delivered on the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (Closing Date other than revolving credit facilities)changes to such legal opinion resulting from a change in law, plus
(D) an unlimited amount, so long as change in fact or change to counsel’s form of opinion reasonably satisfactory to the case of this clause (D) only,Administrative Agent.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreementin connection with a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x4)(a)(i) shall be that (x) no Event of Default shall exist on the LCT Test Date and (y) no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) shall exist after giving effect to such Incremental Commitments), and (yii) the 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, date and 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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4));
(c) the aggregate outstanding principal amount of Incremental Term Loans and Incremental Commitments shall notnot exceed the sum of the following:
(I) an amount that, together with the aggregate principal amount of Permitted Incremental Equivalent DebtIndebtedness incurred pursuant to Section 7.02(b)(12), does not exceed the sum of:greater of (i) $30,000,000169,000,000 and (ii) 3.0% of Total Assets (or after the Adjusted EBITDA Grower Trigger Date, 30.0% of Adjusted EBITDA) as of (or for) the most recently ended Test Period (calculated on a pro forma basis) of the Borrower and its Subsidiaries (it being understood that the 2025 Incremental Term Loans shall be deemed to be an incurrence utilizing the foregoing clause (I)(i)); plus
(A) (1) $500.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2II) the aggregate principal amount, without duplication, of (including, as applicable, prepayments, terminations, redemptions and purchases of such Indebtedness at or below par (in each case, in the principal amount of the Indebtedness or revolving commitments subject thereto) (wthe “First Lien Voluntary Prepayments Amount”) voluntary prepayments, redemptions or repurchases of Closing Date Term Loans, 2025 Incremental Term Loans and Permitted Incremental Equivalent Debt any other Indebtedness secured by the Collateral on a pari passu basis with the Obligations (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, other than Second Out Term Loans and (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of revolving Indebtedness, accompanied by a permanent commitment reduction) (provided that the relevant prepayment, redemption, repurchase or commitment reduction under this clause (z), so long as such prepayment, redemption or repurchase was I) shall not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from have been funded with proceeds of long-term Indebtedness (other than revolving credit facilitiesIndebtedness)), plus
(BIII) (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 (yIIy) 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
the amount available under this clause (C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2c), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans “Free and Permitted Clear Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,Amount”.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments 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 $100.0 million, the conditions contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) 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 First Second Lien Incremental Usage Amount (for the avoidance of doubt, it being agreed that as of the Third Amendment Effective Date, no Incremental Loans or Incremental Commitments have been incurred pursuant to this clause (1)) plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,the
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (x) no Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this AgreementAgreement that is not conditioned upon obtaining third-party financing, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V 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 “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); provided that, in connection with an acquisition or other Investment permitted hereunderhereunder that is not conditioned upon obtaining third-party financing, the conditions in the proviso to clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing holding more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments or Incremental Revolving Loans and Incremental Revolving Commitments, as the case may be (provided, further, that, in the case of an any such acquisition or other Investment with a purchase price in excess of $100.0 20.0 million, the conditions contained in the proviso to clause (x) with respect to no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, or Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in 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 $5.0 million (provided US-DOCS\122695800.10 that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of Section 2.14(4));
(c) 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) $500.0 150.0 million plus any General Debt Basket Reallocated Amount less the First Lien Incremental Usage Amount plus (2) the aggregate amount of (wx) voluntary prepayments, redemptions or repurchases prepayments of Term Loans (including Incremental Loans Term Loans) and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a consisting of revolving credit facilityfacilities) (including purchases of Incremental the 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 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 casethe case of prepayments of Incremental Term Loans or Permitted Incremental Equivalent 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, above and (xy) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance secured on Section 2.14(4)(c)(A)(1) of a pari passu basis with the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) Obligations under this Agreement and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debtabove, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (yx) and (zy), from proceeds of long-term Indebtedness (other than revolving credit facilitiesIndebtedness), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (DB) only,
Appears in 1 contract
Sources: Credit Agreement (Superior Industries International Inc)
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder Incremental Commitments thereunder, shall be subject to the satisfaction on the date thereof (the “Incremental Facility Closing Date”) of each of the following conditions (subject to Section 1.07(10)):conditions:
(ai) (x) no Event if the proceeds of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is Commitments are being used to finance an acquisition a Permitted Acquisition or other Investment permitted by this Agreementhereunder, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1Sections 8.01(a), 8.01(f) or, solely with respect to the Borrower, Section 8.01(6or 8.01(g) shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments, and or (y) if otherwise, no Event of Default shall have occurred and be continuing or would exist after giving effect to such Incremental Commitments;
(ii) after giving effect to such Incremental Commitments and except as set forth in clause (i) above, the representations conditions of Sections 4.02(i) and warranties of the Borrower contained in Article V or any other Loan Document 4.02(ii) shall be true and correct in satisfied (it being understood that all material respects on and as of references to “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 EffectLoan” or similar language in such Section 4.02 shall be true and correct (after giving effect deemed to any qualification therein) in all respects on refer to the effective date of such respective datesIncremental Amendment); provided that, in connection with an acquisition if the proceeds of such Incremental Commitments are being used to finance a Permitted Acquisition or other Investment permitted hereunder, the conditions reference in clause (xSection 4.02(i) to the accuracy of the representations and in clause (y) shall only be required warranties shall, to the extent requested agreed by the Persons providing more than 50% of the applicable Incremental Loans Lender, refer to customary “specified representations” and Incremental Commitments (provided, further, that, in the case of an “specified 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01)representations”;
(biii) [reserved];
(iv) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $5.0 million 5,000,000 if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(42.14(d)(v));
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2v) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of the Incremental Loans incurred after the First Amendment Effective Date (when aggregated with the Initial Loans and Permitted with amounts incurred at or prior to such time pursuant to Section 7.03(q)) shall not exceed the greater of (A) $300,000,000 and (B) an unlimited amount so long as the Incremental Equivalent Debt (other than Loan-to-Value Ratio, determined on a Pro Forma Basis as of the last day of the most recently ended Test Period, as if any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted available under such Incremental Equivalent Debt by Holdings, Commitments had been outstanding on the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments last day of such Incremental 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)period, and, in each case, only without netting the cash proceeds of any such Incremental Loans, does not exceed 5.0%; and
(vi) to the extent reasonably requested by the Lender, the Lender shall have received customary legal opinions, board resolutions and officers’ certificates consistent with those delivered on the ClosingFirst Amendment Effective Date other than changes to such Incremental Loans legal opinion resulting from a change in law, change in fact or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect change to counsel’s form of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, opinion reasonably satisfactory to the extent such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,Lender.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment Amendment, and the availability of any initial credit extensions thereunder 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Default or Event of Default shall exist after giving effect to such Incremental Commitments; provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreement, the requirement pursuant to this clause (4)(a)(x) shall be that no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments, and (y) the representations and warranties of the Borrower contained in Article V or any other Loan Document of this Agreement shall be true and correct in all material respects on and as (or, in the case 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 language 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 (after giving effect to any qualification therein) in all material respects on such (or in all respects, as applicable) as of the respective datesdate or for the respective period, as the case may be); provided that, in connection with an acquisition or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, that in the case of an acquisition or other Investment with a purchase price in excess Incremental Term Commitments (and for the avoidance of $100.0 milliondoubt, the conditions contained not in the proviso case of Incremental Revolving Loan Commitments) and Incremental Term Loans incurred to clause finance a Permitted Acquisition or Investment permitted under Section 7.02(o), (s) or (t) that, in any such case, is not conditioned on the availability of financing (each, a “Limited Condition Transaction”), (x) such requirement shall be subject to customary “SunGard” conditionality (including (1) the representations and warranties hereunder shall be made, but only the customary “specified” representations and warranties shall be required to be accurate) and (2) waiver or non-requirement of the absence of a Default or Event of Default (other than with respect to no a Default or Event of Default under Section 8.01(18.01(a) or, solely with respect to the Borrower, Section 8.01(6or (f))) and (y) the Consolidated First Lien Net Leverage Ratio set forth in clause (yiii)(A) with respect to Specified Representationsbelow 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, shall be required whether or not requested case if otherwise agreed by the Incremental Term Lenders providing such Persons, unless waived in accordance with Section 10.01)Incremental Term Commitments and Incremental Term Loans;
(bii) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided 10,000,000 and shall be in an increment of $1,000,000 and each Incremental Revolving Loan Commitment shall be in an aggregate principal amount that such amount may be is not less than $5.0 million if such amount represents all remaining availability under the limit set forth 5,000,000 and shall be in clause (c) an increment of this Section 2.14(4))$1,000,000;
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2iii) the aggregate amount of the Incremental Term Loans and Incremental Revolving Loan Commitments following the Delayed Draw Term A Commitment Expiration Date shall not exceed the sum of (wA) voluntary prepayments, redemptions or repurchases an unlimited amount of Incremental Term Loans and/or Incremental Revolving Loan Commitments so long as, such amount on and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases as of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any date of its Subsidiaries at or below par, in which case the amount of voluntary prepayments incurrence of such Incremental Term Loans or Permitted Incremental Equivalent Debt shall Commitments, would not cause the Consolidated First Lien Net Leverage Ratio (determined on a Pro Forma Basis, including the pro forma effect of any Specified Transaction to be deemed not to exceed financed (in whole or in part) with the actual purchase price proceeds of such Loans or Permitted the Incremental Equivalent Debt below par)Loan, in each case, only to the extent such Incremental Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, and computed (x) voluntary permanent commitment reductions in respect of assuming all previously established and simultaneously established Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case, to the extent such Incremental Revolving Loan Commitments or Permitted Incremental Equivalent Debt was revolving loan commitments incurred in reliance on under Section 2.14(4)(c)(A)(17.03(r)(i) of the First Lien Credit Agreementare fully drawn, (y) voluntary prepaymentswithout giving effect to any concurrent incurrence of any Indebtedness made pursuant to the following Section 2.14(d)(iii)(B), redemption Section 7.03(r)(i)(B) or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its SubsidiariesSection 7.03(r)(ii)(B) and (z) voluntary prepaymentsexcluding the cash proceeds of (1) any borrowing under any such Incremental Revolving Loan Commitments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of and (2) any Incremental Loans Term Loans) to exceed 3.00 to 1.00 and Permitted Incremental Equivalent Debt incurred in reliance on clause (A)(1) above or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) above; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans that effectively extend the Maturity Date of, or refinance, any Facility, an additional amount equal to the portion greater of $35,000,000 and 50.0% of LTM EBITDA determined as of the Facility date of incurrence (net of Indebtedness incurred pursuant to Section 7.03(r)(i)(B) or Section 7.03(r)(ii)(B)) (it being understood that Indebtedness incurred under this clause (B) shall be replaced available at all times and not subject to any ratio test, whether incurred simultaneously with amounts under clause (A) or refinanced byotherwise); and
(iv) such [reserved];
(v) for purposes of the calculations in clause (iii) above, (A) with respect to any Incremental Commitments, assuming a borrowing of the maximum amount of Loans available thereunder and (yB) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing proceeds thereof are used to repay Indebtedness, Other Loans, Refinancing Indebtedness or other pro forma effect shall be given to such repayment of Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,.
Appears in 1 contract
Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Event of Default shall exist after giving effect to such Incremental Commitments; Commitments (provided that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or other Investment permitted by this Agreementin connection with a Limited Condition Transaction, the requirement pursuant to this clause (4)(a)(x4)(a)(i) shall be that no Event of Default under subject to Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) shall exist after giving effect to such Incremental Commitments1.07(11)), and (yii) the 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, date and 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); provided that, that in connection with an acquisition or other Investment permitted hereundera Limited Condition Transaction, the conditions in clause (xi) and in clause (yii) shall (x) only be required to the extent requested by the Persons non-Affiliated Lenders providing more than 50% of the applicable Incremental Term Loans and Incremental Term Commitments (providedor Incremental Revolving Loans and Incremental Revolving Commitments, further, that, in as 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) may be and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested tested (if applicable) solely on the applicable LCT Test Date as selected by such Persons, unless waived in accordance with the Borrower pursuant to Section 10.011.07(11);
(b) each Incremental Term Commitment shall be in an aggregate principal amount that is not less than $5.0 million 5,000,000 (or such lesser amount to which the Administrative Agent may reasonably agree) (provided that such amount may be less than $5.0 million 5,000,000 (or such lesser amount) 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 (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 clause (c) of Section 2.14(4));
(c) 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: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 (1B) $500.0 million plus any General Debt Basket Reallocated Amount less 100% of Consolidated EBITDA of the First Lien Borrower for the most recently ended Test Period (calculated on a pro forma basis) (the “Free and Clear Incremental Usage Amount Amount”), plus (2II) [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)) (wthe “Voluntary Prepayment Amount”) (A) voluntary prepayments, redemptions or repurchases of (i) Closing Date Term Loans and (ii) Incremental Term Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility), in each case under this clause (ii), to the extent either (X) incurred in reliance on the Non-Ratio Based Incremental Amount or (including purchases of 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 Loans Facility 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 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 Loans or Permitted Incremental Equivalent Debt was then being incurred in reliance on this clause (A)(1) aboveIII)), (xB) voluntary prepayments (accompanied by corresponding permanent commitment reductions in respect of (i) the Closing Date Revolving Facility and (ii) Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each casecase under this clause (ii), to the extent such 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 Commitments 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 was then being incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit Agreement, this clause (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its SubsidiariesIII)) and (zC) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other IndebtednessIndebtedness previously applied, in each casedirectly or indirectly, previously applied to the (a) prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred Indebtedness described in reliance on clause sub-clauses (A)(1A) or (B) above or any First Lien Incremental Usage Amount Debt(b) voluntary permanent commitment reductions in respect of revolving credit commitments described in subclause (B) above (provided, in that the case of this clause (z), so long as such prepayment, redemption or repurchase was relevant commitment reduction is 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-funded with long- term Indebtedness (other than (x) revolving credit facilitiesIndebtedness and intercompany loans and (y) any Incremental Facility or Permitted Incremental Equivalent Debt then being incurred in reliance on this clause (III)), plus
(Bii) (xI) in the case of any Incremental Loans or Incremental Commitments that effectively extend the Maturity Date of, or refinance, any FacilityFacility 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 (yII) 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
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(Diii) an unlimited amount, so long as in the case of this clause (Diii) onlyonly (the “Incremental Ratio Basket”),
(I) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is equal in priority to the Liens on the Collateral securing the First Lien Obligations under this Agreement (but without regard to the control of remedies), (A) with respect to Incremental Loans (other than in respect of Incremental Delayed Draw Term Loan Commitments) or Incremental Revolving Commitments the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 2.75 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) and (B) with respect to Incremental Delayed Draw Term Loan Commitments, the First Lien Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.75 to 1.00 (the condition set forth in this sub-clause (I)(B), the “Delayed Draw Term Loan First Lien Leverage Condition”) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments under this clause (I) are fully drawn and (ii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital),
(II) in the case of Incremental Loans or Incremental Revolving Commitments that are secured by Liens on all or a portion of the Collateral on a basis that is junior in priority to the 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 (the condition set forth in this sub-clause (II)(B), the “Delayed Draw Term Loan Secured Leverage Condition”) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments under this clause (I) are fully drawn and (ii) in the case of all Incremental Loans, calculating the First Lien Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred) (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital), or
(III) in the case of Incremental Loans or Incremental Revolving Commitments that are unsecured (or, solely for purposes of clause (2) under the definition of “Permitted Incremental Equivalent Debt”, Permitted Incremental Equivalent Debt that is secured by assets that do not constitute Collateral), the Total Net Leverage Ratio for the Test Period most recently ended calculated on a pro forma basis after giving effect to any such incurrence does not exceed 3.75 to 1.00 (including in connection with an acquisition or other Investment permitted under this Agreement) (provided that (i) in the case of an incurrence of Incremental Revolving Commitments, assuming such Incremental Revolving Commitments are fully drawn and (ii) in the case of all Incremental Loans, calculating the Total Net Leverage Ratio without netting the cash proceeds from such Incremental Loans then proposed to be incurred (other than with respect to any such cash proceeds of revolving indebtedness intended to be used for working capital). In addition, the Borrower may elect to use clause (iii) of the definition of Available Incremental Amount regardless of whether the Borrower has capacity under clauses (i) or (ii) of the definition of Available Incremental Amount. Further, the Borrower may elect to use clause (iii) of the definition of Available Incremental Amount prior to using clauses (i) or (ii) of the definition of Available Incremental Amount, and if both clause (iii) and clauses (i) or (ii) of the definition of Available Incremental Amount are available, unless otherwise elected by the Borrower, then the Borrower will be deemed to have elected to use clause (iii) of the definition of Available Incremental Amount. In addition, any Indebtedness originally designated as incurred pursuant to clauses (i) or (ii) of the definition of Available Incremental Amount shall be automatically reclassified as incurred under clause (iii) of the definition of Available Incremental Amount at such time as the Borrower would meet the applicable leverage-based incurrence test at such time on a pro forma basis, unless otherwise elected by the Borrower. In the case of any Incremental Delayed Draw Term Loan Commitment or Incremental Equivalent Debt in the form of a delayed draw loan or note, for purposes of determining capacity under, and compliance with the Available Incremental Amount (including for purposes of incurring or establishing such Incremental Delayed Draw Term Loan Commitment (and any associated Incremental Delayed Draw Term Loan) or Incremental Equivalent Debt in the form of a delayed draw term loan or note), such Incremental Delayed Draw Term Loan or Incremental Equivalent Debt shall be incurred as and when the applicable Incremental Delayed Draw Term Loan or Incremental Equivalent Debt is funded (and shall be deemed not to be drawn, or incurred under the Available Incremental Amount, prior to the funding thereof) (for the avoidance of doubt, capacity under the Available Incremental Amount with respect to incurring such 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)).
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Effectiveness of Incremental Amendment. The effectiveness of any Incremental Amendment and the 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 (subject to Section 1.07(10)):conditions:
(a) (xi) no Event of Default shall has occurred and is continuing or would exist immediately after giving effect to such Incremental Commitments; provided that, with respect to any that if the proceeds of such Incremental Amendment the primary purpose of which is Commitments are used to finance an acquisition Acquisition permitted by Section 7.5 or other an Investment permitted by this AgreementSection 7.4, to the extent agreed to by the Incremental Lenders providing the applicable Incremental Commitments, the requirement pursuant to this clause (4)(a)(xi) shall be that no Event of Default under Section 8.01(18.1(a), (b), (h), or (i) or, solely with respect to the Borrower, Section 8.01(6) has occurred and is continuing or shall exist immediately after giving effect to such Incremental Commitments, and ;
(yii) the representations and warranties of the Borrower contained Loan Parties and the Liberty Subsidiaries set forth in Article V or any other the Loan Document Documents shall be true and correct in all material respects on and as of the date of such Incremental Amendment (provided that, except to the extent that such representations and warranties specifically refer relate to an earlier date, they in which case such representations and warranties shall be true and correct in all material respects as of such earlier date; provided, further, that, date and that any representation and warranty that is qualified as to “materiality,” or “Material Adverse Effect” or similar language shall be true and correct (after giving effect to any qualification therein) in all respects on such respective dateswithout further qualification); provided that, in connection with an acquisition that customary “Sungard” or other Investment permitted hereunder, the conditions in clause (x) and in clause (y) shall only be required to the extent requested by the Persons providing more than 50% of the applicable Incremental Loans and Incremental Commitments (provided, further, that, in the case of 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 no Event of Default under Section 8.01(1) or, solely with respect to the Borrower, Section 8.01(6) and in clause (y) with respect to Specified Representations, in each case, shall be required whether or not requested by such Persons, unless waived in accordance with Section 10.01);
(b) each Incremental Commitment shall be in an aggregate principal amount that is not less than $5.0 million (provided that such amount may be less than $5.0 million if such amount represents all remaining availability under the limit set forth in clause (c) of this Section 2.14(4));
(c) the aggregate principal amount of Incremental Loans and Incremental 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 First Lien Incremental Usage Amount plus (2) the aggregate amount of (w) voluntary prepayments, redemptions or repurchases of Incremental Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Incremental Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries at or below par, in which case the amount of voluntary prepayments of such Incremental 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 Loans or Permitted Incremental Equivalent Debt was incurred in reliance on clause (A)(1) above, (x) voluntary permanent commitment reductions in respect of Incremental Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments, in each case“certain funds” conditionality shall, to the extent agreed by the Incremental Lenders providing such Incremental Revolving Commitments or Permitted Incremental Equivalent Debt was incurred in reliance on Section 2.14(4)(c)(A)(1) of the First Lien Credit AgreementCommitments, (y) voluntary prepayments, redemption or repurchase of First Lien Incremental Usage Amount Debt (including purchases of First Lien Incremental Usage Amount Debt by Holdings, the Borrower or any of its Subsidiaries) and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied apply to the prepayment, redemption or repurchase of any Incremental Loans and Permitted Incremental Equivalent Debt incurred Amendment entered into in reliance on clause (A)(1) above order to finance Acquisitions permitted by Section 7.5 or any First Lien Incremental Usage Amount Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (w) or clause (y) aboveInvestments permitted by Section 7.4; other than, in each case under clauses (w), (y) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(B) (x) in the case of any Incremental Loans 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 and (y) in the case of any Incremental Loans that effectively replace any Loan that is terminated or cancelled in accordance with Section 3.07, an amount equal to the portion of the relevant terminated or cancelled Loan, plus
(C) solely to the extent not in duplication of prepayments, redemptions, repurchases or permanent commitment reductions described in Section 2.14(4)(c)(A)(2), the aggregate amount of (x) voluntary prepayments, redemptions or repurchases of Loans and Permitted Incremental Equivalent Debt (other than any Permitted Incremental Equivalent Debt that is a revolving credit facility) (including purchases of Loans or Permitted Incremental Equivalent Debt by Holdings, the Borrower or any of its Subsidiaries, (y) voluntary permanent commitment reductions in respect of Revolving Commitments (as defined in the First Lien Credit Agreement) or Permitted Incremental Equivalent Debt (as defined in the First Lien Credit Agreement) consisting of revolving credit commitments and (z) voluntary prepayments, redemptions or repurchases of any Credit Agreement Refinancing Indebtedness, Other Loans, Refinancing Indebtedness or other Indebtedness, in each case, previously applied to the prepayment, redemption or repurchase of any Loans and Permitted Incremental Equivalent Debt, in the case of this clause (z), so long as such prepayment, redemption or repurchase was not previously included in clause (x) above; other than, in each case under clauses (x) and (z), from proceeds of long-term Indebtedness (other than revolving credit facilities), plus
(D) an unlimited amount, so long as in the case of this clause (D) only,and
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