Incremental Credit Extensions. (a) The Borrower may, at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental Lender”); provided that: (i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion; (ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder; (iii) the Incremental Loans shall not mature earlier than the Maturity Date; (iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans; (v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders; (vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and (vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors. (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans. (c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement. (d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date. (e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Mueller Water Products, Inc.), Term Loan Credit Agreement (Mueller Water Products, Inc.)
Incremental Credit Extensions. (a) The Borrower may, Borrowers may at any time or from time to time after the Closing DateDate (but no more than twice over the term of this Agreement), by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (Incremental Term Loan Commitments, provided that any such request shall be conditioned upon the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental Lender”); provided thatfollowing:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall Term Loan Commitments that may be requested by the Borrowers may not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion15,000,000;
(ii) each notice delivered by the Borrowers to the Administrative Agent shall specify (A) the date on which Borrower proposes that the Incremental Term Loan Commitments shall be effective, which shall be a date not less than 10 days nor more than 21 days after the date on which such notice is delivered to the Administrative Agent, (B) the amount of the Incremental Term Loan Commitments being requested (which requests shall be in minimum increments of $1,000,000 and a minimum amount of $1,000,000) and (C) the use of proceeds of the requested Incremental Term Loans;
(iii) at the time of any such request, after giving effect to the effectiveness of any Incremental Amendment referred to below and after giving effect to the establishment of the Incremental Term Loan Commitments, the incurrence of the Incremental Term Loans, no Default or Event of Default shall have occurred and be continuing or would result therefrom; and
(iv) the Borrowers shall be in pro forma compliance with the financial covenants set forth in Section 7.2.4 as at the end of the most recent four consecutive fiscal quarter period for which financial statements are required to be delivered pursuant to Section 7.1.1 prior to the date of the making of the Incremental Term Loans (giving effect to the incurrence of the Incremental Term Loans as if it had occurred on the first day of such four consecutive fiscal quarter period and giving effect to any other appropriate pro forma calculations, including any acquisitions or dispositions occurring after the beginning of such four consecutive fiscal quarter period but prior to or simultaneous with the borrowing of such Incremental Term Loans), and in any event calculated in a manner consistent with the financial statements described in Section 6.5. The Incremental Term Loans (a) shall rank pari passu in right of payment and of security with the other Revolving Loans and Commitments hereunder;
the existing Term Loans, (iiib) the Incremental Loans shall not mature earlier than the Stated Maturity Date;
Date for Term Loans and (ivc) shall be treated the same as the existing Term Loans (in each case, including with respect to scheduled amortization and mandatory and voluntary prepayments; it being understood that scheduled payments and prepayments shall be applied pro rata to the Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than based on the Weighted Average Life to Maturity aggregate principal amount of existing Term Loans and Incremental Term Loans then outstanding and in accordance with the Loans;
(v) subject to clauses (iii) and (iv) aboveterms of Sections 4.7), provided that the interest rates and the amortization schedule applicable to the Incremental Term Loans (including any such Incremental Loans original issue discount, fees or other compensation paid in respect thereof) shall be determined by the Borrower Borrowers and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Datelenders thereof. The foregoing notwithstanding, if the all-in-effective per annum yield of the Incremental Term Loans exceeds by more than 0.25% per annum the effective per annum yield of the Term Loans already outstanding (whether in the form of taking into consideration applicable interest rate marginsrates, any original issue discount, upfront fees or interest rate floors (subject and all other compensation paid to the first proviso in this clause lenders (vii)including any existing Lenders) providing the Incremental Term Loans), with such increased amount being equated to interest margin for purposes of determining any increase each Borrower agrees, as a further condition precedent to the Applicable Margin under establishment of the Facility) with respect Incremental Term Loan Commitments and the incurrence of the Incremental Term Loans, to enter into an amendment to this Agreement, in form and substance satisfactory to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect Administrative Agent, to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to increase the interest rate) with respect , fees or other compensation payable to the existing Loans, after giving effect Term Loan Lenders such that the existing Term Loan Lenders receive the same compensation as is to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable be provided to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by lenders providing the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floorsTerm Loan Commitments.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans Term Loan Commitments may be made by any existing Lender or any Additional Lender (provided that although no Lender shall be obligated have any right or obligation to make a portion of any provide an Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Term Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateCommitment) or by any other bank or other lender (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother lender being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such or Additional Lender’s establishing an Incremental Loans Term Loan Commitment if such consent would be required under Section 10.6(b) 10.11 for an assignment of Loans to such Lender or Additional Lender. Commitments Each Borrower and each Incremental Term Loan Lender shall execute and deliver to the Administrative Agent an Incremental Term Loan Assumption Agreement and such other documentation as the Administrative Agent shall reasonably specify to evidence the Incremental Term Loan Commitment of such Incremental Term Loan Lender. Each Incremental Term Loan Assumption Agreement shall specify the terms of the Incremental Term Loans to be made thereunder (which terms, to the extent inconsistent with the terms under this Agreement, shall be reasonably satisfactory to the Administrative Agent). As a condition to the effectiveness of any Incremental Term Loan Assumption Agreement, all fees and expenses owing in respect of such Incremental Term Loans shall become have been paid to the Lenders and/or the Additional Lenders, as applicable. Each of the parties hereto hereby agrees that, upon the effectiveness of any Incremental Term Loan Assumption Agreement, Incremental Term Loan Commitments thereunder shall be deemed to be Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to Agreement, and this Agreement and, as appropriate, shall be deemed amended to the other extent (but only to the extent) necessary to reflect the existence and terms of the Incremental Term Loan Documents, executed Commitment evidenced thereby and any increase to the Applicable Margins required by the Borrower, each Lender agreeing to provide foregoing provisions of this Section 2.8. Any such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as deemed amendment may be necessary or appropriate, memorialized in the reasonable opinion of writing by the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) Borrowers and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject furnished to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreementhereto.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Sabre Industries, Inc.), Credit Agreement (Sabre Industries, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that (iA) after giving effect to any at the time of each such request and upon the effectiveness of each Incremental LoansRevolving Facility Amendment, the aggregate amount of Incremental Loans no Default shall not exceed an amount equal to the sum of have occurred and be continuing or shall result therefrom (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessor, in the case of this the incurrence or provision of any Incremental Revolving Facility in connection with a Limited Condition Acquisition, no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (yA) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), the aggregate principal amount respectively, be accompanied by a reasonably detailed calculation of Indebtedness incurred under Section 6.1(b)(vi)(y) Consolidated EBITDA or Section 6.1(b)(ii)(y)); provided thatConsolidated Interest Expense, as applicable, for the avoidance of doubtrelevant period), (C) such Incremental Revolving Facility (x) shall be secured solely by Collateral on a pari passu basis with or junior basis to the Initial Revolving Loans (provided that to the extent such Incremental Revolving Facility is secured by junior Liens, the amount available to applicable parties shall have entered into the Borrower pursuant to this clause Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (y) shall be available at all times and shall not be subject to the ratio test described guaranteed by any Persons other than Loan Parties, (D) except as set forth in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xF) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) abovebelow, the interest rates rate margins, rate floors, fees, premiums and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable Additional Revolving Lenders providing such Incremental Lenders;
(vi) Revolving Facility, provided that no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Incremental Revolving Facility shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or mature prior to the date that is eighteen (18) months after Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Closing Revolving Maturity Date, if (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in-yield Administrative Agent, the Borrower and the Additional Revolving Lenders, (whether F) in the form case of interest rate marginsan increase in the Revolving Commitments hereunder, original issue discountthe maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, upfront fees such increase in the Revolving Commitment shall require no scheduled amortization or interest rate floors mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the first proviso in this clause (vii))express requirements herein, with such increased amount being equated any Incremental Revolving Facility Amendment shall be on the terms and pursuant to interest margin for purposes of determining any increase documentation to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialRevolving Facilities; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only that to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, terms and in such case the interest rate floor documentation are not consistent with this Agreement (but not the Applicable Margin) applicable to the Loans shall be increased except to the extent of such differential between interest rate floors.
permitted by clause (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateD) or (iiE) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such act as “issuing bank” and no Swingline Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with to act as a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of “swingline lender” under any such Incremental Amendment, an “Revolving Facility without its written consent. Each Incremental Revolving Facility Closing Date”). The Borrower will use shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases to the then-existing Term Loans or one or more additional tranches Classes of Term Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
that (i) after giving effect to except as otherwise agreed by the lenders providing the relevant Incremental Term Loans in connection with any such Incremental Loans, the aggregate amount of Incremental Loans Limited Condition Acquisition (which shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (xSection 2.14(b); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction), no Default or Event of Default shall have occurred at the time of the incurrence of such Incremental Term Loans and be continuing or result therefrom, (ii) no Lender shall be obligated to provide any Incremental Term Loans as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in writing in its sole discretion to provide an Incremental Term Loan and executed and delivered to the Administrative Agent an Incremental Amendment as provided below in this Section 2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) each increase in then-existing Term Loans or additional Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and a whole multiple 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 the next sentence or the Administrative Agent otherwise consents) and (iv) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, certifying, to the best of such officer’s knowledge, (x) compliance with the requirements of preceding clause (i), the provisos of the second succeeding sentence, and of Section 8.1(a6 to the extent required by the next succeeding paragraph, and (y) or 8.1(fthe “Maximum Incremental Facilities Amount”, including the ratio set forth therein, if applicable, at the time of incurrence (together with calculations thereof in reasonable detail)) . Notwithstanding anything to the contrary herein, in no event shall exist on the aggregate amount of the Incremental Facility Closing Date Term Loans incurred at any time exceed the Maximum Incremental Facilities Amount as of such time. The Incremental Term Loans shall be, except as provided in immediately succeeding clause (ii) below, secured by the Security Documents, and guaranteed under the Guaranty, on an equal and ratable basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Term Loans (in each case, including with respect to any Incremental Amendment entered into in connection therewith (mandatory and after giving effect to any Incremental Loans made thereundervoluntary prepayments); and
provided, however, that (viii) with respect the interest rate applicable to any a Class of Incremental Amendment made on or prior Term Loans may differ from that applicable to the date that is eighteen (18) months after the Closing DateInitial Term Loans or any other Class of Incremental Term Loans, provided, however, if the all-in-yield “effective yield” applicable to a given Class of Incremental Term Loans (whether in the form which, for such purposes only, shall be deemed to take account of any then applicable interest rate marginsmargin, original issue discountinterest rate benchmark floors, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Class of original issue discount), Incremental Term Loans but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Class of Incremental LoanTerm Loans) determined as of the initial funding date for such Class of Incremental Term Loans exceeds the “effective yield” of any Initial Term Loans or any other Class of Incremental Term Loans (unless the terms of such Class provide that such Class is not subject to this provision) (determined on the same basis as provided above, which shall not with the comparative determination to be included and equated to made in the interest ratereasonable judgment of the Administrative Agent consistent with generally accepted financial practice) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points 0.50% (the amount of such excess above 50 basis points over 0.50% being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans or such other Class of Incremental Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential (including, as provided in the following proviso, the LIBO Rate or Base Rate floor) effective upon the making of the applicable Incremental Yield DifferentialTerm Loans; provided that, in determining the interest rate margins applicable to the Incremental Term Loans and the Initial Term Loans or such other Class of Incremental Term Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any other Class of Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) if the Incremental Term Loans include an interest-rate a LIBO Rate floor or Base Rate floor greater than the interest rate LIBO Rate floor or Base Rate floor applicable to the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans, the differential between (I) such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin under the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be required, but only required and (II) to the extent an increase in the interest rate LIBO Rate floor applicable to or Base Rate floor in the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate then in effect thereunder, the LIBO Rate floor or Base Rate floor (but not the Applicable Margininterest rate margin) applicable to the Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be increased by such increased amount, (ii) a given Class of Incremental Term Loans may rank junior in right of security with other Term Loans or be unsecured, in which case such Incremental Term Loans will be extended pursuant to a separate credit agreement and the provisions of immediately preceding clause (i) shall not apply; (iii) the final stated maturity date for a given Class of Incremental Term Loans may be on or later (but not sooner) than, the Initial Maturity Date, (iv) the amortization requirements for a given Class of Incremental Term Loans may differ, so long as the Weighted Average Life to Maturity of such Incremental Term Loans is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans (except to the extent of such differential between interest rate floors.
(b) Except nominal amortization for periods where amortization has been eliminated as set forth in Section 2.19(aa result of prepayment of the applicable Loans), (v) except as otherwise required or as permitted in clauses (i) through (iv) above, the other terms of a given Class of Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of the Loans; provided that such terms may differ if reasonably satisfactory to the Administrative Agent; provided, further, that any such terms that are not substantially consistent with the then-existing Loans shall be no more favorable (taken as a whole) to the relevant Lenders under such Incremental Term Loans than those applicable to the then-existing Loans (taken as a whole) and (vi) the proceeds of Incremental Term Loans may be utilized by Holdings, the Borrower or any of their respective Subsidiaries as may be agreed by the Borrower and the Lenders providing the Incremental Term Loans, to the extent not otherwise prohibited by this Agreement. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated substantially as the same Class as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share any of such prepayments) and GuaranteesTerm Loans. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender (or any Additional existing Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAffiliate) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentother financial institution being called an “Additional Lender”); provided that the Administrative Agent shall have consented to such Additional Lender (such consent not to be unreasonably withheld, conditioned withheld or delayed) and such Additional Lender shall not be an Affiliated Lender (other than Affiliated Sponsor Lenders in accordance with the requirements of, and subject to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(bthe limitations contained in, Sections 2.15(a)(vii) for an assignment of Loans to such Lender or Additional Lenderand (d)). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents (including, without limitation, any Mortgage modifications and related date-down endorsements to the Mortgage Policies) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness occurrence of the effective date of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on such date of each of the condition conditions set forth in clause Section 6 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 6 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except obligated to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement provide any Incremental AmendmentTerm Loans, unless it so agrees.
Appears in 2 contracts
Sources: Term Loan Credit Agreement, Term Loan Credit Agreement (Jill Intermediate LLC)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches (or an increase of Loans (the commitments thereof, the thereunder) (“Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (iA) after giving effect to any such Incremental Loansno Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate amount of Incremental Loans Borrower shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) covenants contained in Sections 6.12 and 6.13 recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) belowrelevant period), plus (yD) $175,000,000 such Incremental Revolving Facility may be secured on a pari passu basis with the Loans, (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(iiE) the Incremental Loans shall rank pari passu in right of payment interest rate margins, rate floors, fees, premiums and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable lenders thereunder, (F) any Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Revolving Facility Amendment shall exist be on the Incremental Facility Closing Date with respect terms and pursuant to any Incremental Amendment entered into in connection therewith (and after giving effect documentation to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental LendersRevolving Facilities and (G) exceeds any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorterAdministrative Agent, the remaining life to maturity thereof) Borrower and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialAdditional Revolving Lenders; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only that to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, terms and in such case the interest rate floor documentation are not consistent with this Agreement (but not the Applicable Margin) applicable to the Loans shall be increased except to the extent of such differential between interest rate floors.
permitted by clause (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateE) or (iiG) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent. Each Incremental Revolving Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that the Administrative Agent shall have consented (such consent not to amount may be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans less than $10,000,000 if such consent would be required amount represents all the remaining availability under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 2 contracts
Sources: Credit Agreement (Virtu Financial, Inc.), Credit Agreement (Virtu Financial, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (iA) after giving effect to any such Incremental Loansno Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate amount of Incremental Loans Borrower shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) covenants contained in Sections 6.12 and 6.13 recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) belowrelevant period), plus (yD) $175,000,000 such Incremental Revolving Facility may be secured on a pari passu basis with the Loans, (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(iiE) the Incremental Loans shall rank pari passu in right of payment interest rate margins, rate floors, fees, premiums and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable lenders thereunder, provided that no Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Revolving Facility shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or mature prior to the date that is eighteen (18) months after Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Closing Revolving Maturity Date, if (F) any Incremental Revolving Facility Amendment shall be on the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject terms and pursuant to the first proviso in this clause (vii)), with such increased amount being equated documentation to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental LendersRevolving Facilities, (G) exceeds any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorterAdministrative Agent, the remaining life to maturity thereofBorrower and the Additional Revolving Lenders and (H) and upfront fees (which shall be deemed to constitute like amount in the case of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to Revolving Commitments hereunder, the Loans would cause an maturity date of such increase in the Applicable Margin applicable to Revolving Commitment shall be the Revolving Maturity Date, such Loans, and increase in such case the interest rate floor (but not the Applicable Margin) applicable Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Loans Revolving Maturity Date and shall be increased on the same terms governing the Revolving Commitments pursuant to this Agreement; provided that to the extent of such differential between interest rate floors.
terms and documentation are not consistent with this Agreement (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, except to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which by clause (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateE) or (iiG) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required to act as “issuing bank” under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Revolving Facility without its written consent. Each Incremental Revolving Facility Closing Date”). The Borrower will use shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 2 contracts
Sources: Restatement Agreement (Virtu Financial, Inc.), Restatement Agreement (Virtu Financial, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases to the then-existing Term Loans or one or more additional tranches Classes of Loans Term Loans, in each case, which shall be denominated in Dollars (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xi) or (y) above in such order except as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined otherwise agreed by the Borrower and lenders providing the applicable relevant Incremental Lenders;
(vi) no Default or Event of Default (or, Term Loans in connection with a any Limited Condition TransactionAcquisition (which shall be subject to Section 2.15(b)), no Default or Event of Default under Section 8.1(ashall have occurred at the time of the incurrence of such Incremental Term Loans and be continuing or result therefrom, (ii) or 8.1(f)) no Lender shall exist on the Incremental Facility Closing Date with respect be obligated to provide any Incremental Term Loans as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in writing in its sole discretion to provide an Incremental Term Loan and executed and delivered to the Administrative Agent an Incremental Amendment entered into as provided below in connection therewith this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) each increase in then-existing Term Loans or additional Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and a whole multiple 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 the next sentence or the Administrative and the Required Lenders otherwise consent), (iv) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, certifying, to the best of such officer’s knowledge, (x) compliance with the requirements of preceding clause (i), the provisos of the second succeeding sentence, and of Section 6 to the extent required by the next succeeding paragraph, and (y) the “Maximum Incremental Facilities Amount” at the time of incurrence (together with calculations thereof in reasonable detail), and (v) on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans and application of proceeds thereof, (A)(1) in the case of Incremental Term Loans secured on an equal and ratable basis with the Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 1.75:1.00, (2) in the case of Incremental Term Loans secured on a junior basis to the Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 1.75:1.00, or (3) in the case of Incremental Term Loans that are unsecured or that are Subordinated Indebtedness, the Total Net Leverage Ratio for the Calculation Period most recently ended is not less than 1.75:1.00, and (B) the Borrower shall be in compliance with the financial covenants set forth in Sections 9.10 and 9.11 as of the most recent Calculation Period. Notwithstanding anything to the contrary herein, in no event shall the aggregate amount of the Incremental Term Loans incurred at any time exceed the Maximum Incremental Facilities Amount as of such time. The Incremental Term Loans made thereunder); and
shall be, except as provided in immediately succeeding clause (viiii) below, secured by the Security Documents, and guaranteed under the Guaranty, on an equal and ratable basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Term Loans (in each case, including with respect to any mandatory and voluntary prepayments); provided, however, that (i) the interest rate applicable to a Class of Incremental Amendment made on or prior Term Loans may differ from that applicable to the date that is eighteen (18) months after the Closing DateInitial Term Loans or any other Class of Incremental Term Loans; provided, however, if the all-in-yield “effective yield” applicable to a given Class of Incremental Term Loans that is secured on an equal and ratable basis with the Obligations (whether in the form which, for such purposes only, shall be deemed to take account of any then applicable interest rate marginsmargin, original issue discountinterest rate benchmark floors, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Class of original issue discount), Incremental Term Loans but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Class of Incremental LoanTerm Loans) determined as of the initial funding date for such Class of Incremental Term Loans exceeds the “effective yield” of any Initial Term Loans or any other Class of Incremental Term Loans (unless the terms of such Class provide that such Class is not subject to this provision) (determined on the same basis as provided above, which shall not with the comparative determination to be included and equated to made in the interest ratereasonable judgment of the Administrative Agent (as determined by the Administrative Agent in consultation with the Required Lenders) consistent with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), generally accepted financial practice) by more than 50 basis points 0.50% (the amount of such excess above 50 basis points over 0.50% being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans or such other Class of Incremental Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential (including, as provided in the following proviso, the “floor” for any applicable Term Loans effective upon the making of the applicable Incremental Yield DifferentialTerm Loans; provided that, in determining the interest rate margins applicable to the Incremental Term Loans and the Initial Term Loans or such other Class of Incremental Term Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any other Class of Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) if the Incremental Term Loans include an interest-rate floor a “floor” greater than the interest rate floor “floor” applicable to the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans, the differential between (I) such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin under the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be required, but only required and (II) to the extent an increase in the interest rate floor applicable to “floor” in the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor then in effect thereunder, the “floor” (but not the Applicable Margininterest rate margin) applicable to the Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be increased by such increased amount (this clause (i), the “MFN Provision”), (ii) a given Class of Incremental Term Loans may rank junior in right of security with other Term Loans or be unsecured, in which case such Incremental Term Loans will be extended pursuant to a separate credit agreement and the provisions of immediately preceding clause (i) shall not apply; (iii) the final stated maturity date for a given Class of Incremental Term Loans may be on or later (but not sooner) than, the Initial Maturity Date, (iv) the amortization requirements for a given Class of Incremental Term Loans may differ, so long as the Weighted Average Life to Maturity of such Incremental Term Loans is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans (except to the extent of such differential between interest rate floors.
(b) Except nominal amortization for periods where amortization has been eliminated as set forth in Section 2.19(aa result of prepayment of the applicable Loans), (v) if such Incremental Term Loans are secured, they shall not be secured by any assets other than the Collateral, (vi) if such Incremental Term Loans are guaranteed, they shall not be guaranteed by any Person other than the Guarantors, (vii) except as otherwise required or as permitted in clauses (i) through (vi) above, the other terms of a given Class of Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of the Term Loans; provided, that such terms may differ if reasonably satisfactory to the Administrative Agent and the Required Lenders; provided, further, that any such terms that are not substantially consistent with the then-existing Loans shall be no more favorable (taken as a whole) to the relevant Lenders under such Incremental Term Loans than those applicable to the then-existing Loans (taken as a whole) and (viii) the proceeds of Incremental Term Loans may be utilized by Holdings, the Borrower or any of their respective Subsidiaries as may be agreed by the Borrower and the Lenders providing the Incremental Term Loans, to the extent not otherwise prohibited by this Agreement. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated substantially as the same Class as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share any of such prepayments) and GuaranteesTerm Loans. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender (or any Additional existing Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAffiliate) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”); provided, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and the Required Lenders shall have consented to such Additional Lender (such consent not to be unreasonably withheld, conditioned withheld or delayed) and such Additional Lender shall not be an Affiliated Lender (other than Affiliated Sponsor Lenders in accordance with the requirements of, and subject to the limitations contained in, Sections 2.16(a)(vii) and (d)). Each Non-Defaulting Lender shall be afforded a right of first offer with respect to such Lender’s making pro rata portion of such Incremental Term Loans if on the terms and subject to the conditions offered by the Borrower to any other prospective lenders; provided, that any existing Non-Defaulting Lender that does not deliver to the Borrower a written commitment to provide its pro rata share of such consent would Incremental Term Loans on such terms and subject to such conditions within ten (10) Business Days after receipt by such Non-Defaulting Lender of written notice thereof may be required under Section 10.6(b) for an assignment deemed by the Borrower, in its sole discretion, to have declined to provide its pro rata share of such Incremental Term Loans (in which case, the Borrower shall be deemed to have complied with its obligation to afford a right of first offer to such Non-Defaulting Lender and may offer the opportunity to provide such Incremental Term Loans to such Lender or Additional any other Person (including any other existing Lender)). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, to the extent reasonably requested by the Administrative Agent or Required Lenders, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents (including, without limitation, any Mortgage modifications and related date-down endorsements to the Mortgage Policies) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Agent, the Required Lenders and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.15. The effectiveness occurrence of the effective date of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on such date of each of the condition conditions set forth in clause Section 6 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 6 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except obligated to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement provide any Incremental AmendmentTerm Loans, unless it so agrees.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, at (2) At any time or and from time to time after the Closing First Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that (iA) after giving effect to any at the time of each such request and upon the effectiveness of each Incremental LoansRevolving Facility Amendment, the aggregate amount of Incremental Loans no Default shall not exceed an amount equal to the sum of have occurred and be continuing or shall result therefrom (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessor, in the case of this the incurrence or provision of any Incremental Revolving Facility in connection with a Limited Condition Acquisition, no Specified Event of Default shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (yA) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), the aggregate principal amount respectively, be accompanied by a reasonably detailed calculation of Indebtedness incurred under Section 6.1(b)(vi)(y) Consolidated EBITDA or Section 6.1(b)(ii)(y)); provided thatConsolidated Interest Expense, as applicable, for the avoidance of doubtrelevant period), (C) such Incremental Revolving Facility (x) shall be secured solely by Collateral on a pari passu basis with or junior basis to the Initial Revolving Loans (provided that to the extent such Incremental Revolving Facility is secured by junior Liens, the amount available to applicable parties shall have entered into the Borrower pursuant to this clause Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (y) shall be available at all times and shall not be subject to the ratio test described guaranteed by any Persons other than Loan Parties, (D) except as set forth in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xF) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) abovebelow, the interest rates rate margins, rate floors, fees, premiums and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable Additional Revolving Lenders providing such Incremental Lenders;
(vi) Revolving Facility, provided that no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Incremental Revolving Facility shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or mature prior to the date that is eighteen (18) months after Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Closing Revolving Maturity Date, if (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in-yield Administrative Agent, the Borrower and the Additional Revolving Lenders, (whether F) in the form case of interest rate marginsan increase in the Revolving Commitments hereunder, original issue discountthe maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, upfront fees such increase in the Revolving Commitment shall require no scheduled amortization or interest rate floors mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the first proviso in this clause (vii))express requirements herein, with such increased amount being equated any Incremental Revolving Facility Amendment shall be on the terms and pursuant to interest margin for purposes of determining any increase documentation to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialRevolving Facilities; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only that to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, terms and in such case the interest rate floor documentation are not consistent with this Agreement (but not the Applicable Margin) applicable to the Loans shall be increased except to the extent of such differential between interest rate floors.
permitted by clause (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateD) or (iiE) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such act as “issuing bank” and no Swingline Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with to act as a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of “swingline lender” under any such Incremental Amendment, an “Revolving Facility without its written consent. Each Incremental Revolving Facility Closing Date”). The Borrower will use shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time on one or more occasions after the Closing Date, by written notice from the Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (i) one or more additional tranches Classes of Loans term loans hereunder or additional term loans of the same Class of any existing Class of term loans hereunder (the commitments thereof“Incremental Term Loans”) and/or (ii) one or more increases in the amount of the Revolving Commitments hereunder (each such increase, an “Incremental Revolving Commitment Increase” and, together with the Incremental Term Loans, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); provided that:
, subject to Section 1.06, at the time that any such Incremental Term Loan or Incremental Revolving Commitment Increase is made or effected (i) and also immediately after giving effect to any such Incremental Loansthereto), the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (A) (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or, y) in connection with the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition TransactionTransaction in which an LCT Election has been made, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f)(i) shall exist have occurred and be continuing at the time that any such Incremental Term Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Term Loan the proceeds of which shall be used to fund a Limited Condition Transaction in which an LCT Election has been made, each of the representations and warranties made by any Loan Party set forth in Article III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of the effectiveness of any Incremental Facility Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects, as the case may be) as of such earlier date. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility Closing Date shall be in a minimum principal amount of (x) $5,000,000 in the case of Incremental Term Loans, or (y) $2,000,000 in the case of Incremental Revolving Commitment Increases and, in either case, integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than either of the foregoing amounts if either such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) The Incremental Term Loans (a) shall rank equal in right of payment with the Term Loans, shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (b) except with respect to any an aggregate principal amount of Incremental Amendment entered into in connection therewith Term Loans not greater than the Fixed Incremental Amount, shall not mature earlier than the Term Maturity Date, (and after giving effect to any Incremental Loans made thereunder); and
(viic) except with respect to any an aggregate principal amount of Incremental Amendment made on or prior Term Loans not greater than the Fixed Incremental Amount, shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans, (d) shall have a maturity date that is eighteen (18) months after the Closing Datesubject to preceding clause (b)), if the all-in-yield and interest rates (whether in the form of including through fixed interest rates), interest margins, rate marginsfloors, upfront fees, funding discounts, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin discounts and prepayment terms and premiums for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Additional Term Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differentialthereunder; provided that, if the except with respect to (A) an aggregate principal amount of Incremental Term Loans include an interest-rate floor not greater than the interest rate floor applicable Fixed Incremental Amount, (B) any Incremental Term Loans used to finance a Permitted Acquisition or other similar permitted Investment or (C) any Incremental Term Loans that mature more than one (1) year after the LoansTerm Maturity Date, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to event that the Effective Yield for any Incremental Term Loans would cause an increase in incurred during the Applicable Margin applicable to such Loansfirst twelve (12) months after the Closing Date is greater than the Effective Yield for the Initial Term Loans by more than 0.75% per annum, and in such case then the interest rate floor (but not Effective Yield for the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.75% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be treated substantially increased to an amount not to exceed the same as “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (e) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Term Lenders of such Incremental Term Loans elect to receive a lesser share of any such prepayment); and (f) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, including except with respect to mandatory and voluntary prepayments matters contemplated by clauses (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepaymentsa), (b), (c), (d) and Guarantees. Each notice from the Borrower (e) above but subject to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
clause (c) below, the terms and conditions of any such Incremental Term Loans may be made by any existing Lender or any Additional Lender (provided that no Lender Incremental Revolving Commitment Increase, as applicable, shall not be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on to Holdings, the Group MembersBorrower and its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than those with respect to the terms of the Initial Term Loans or Revolving Loans, as applicable, unless (but excluding 1) such term is also added for the benefit of any terms applicable corresponding existing Term Loans or Revolving Loans, as applicable, without the consent of the Administrative Agent or any Lender being required, (2) any such provisions apply after the Latest Maturity Date) Date at the time of incurrence of such Incremental Facility or (ii3) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, such terms shall in each case be reasonably satisfactory to the Administrative Agent; provided that .
(c) The Incremental Revolving Commitment Increase shall be treated the Administrative Agent same as the Revolving Commitments (including with respect to maturity date thereof) and shall have consented (such consent not be considered to be unreasonably withheldpart of the Revolving Loans and Revolving Commitments (it being understood that, conditioned if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Revolving Commitments may be increased and additional upfront or delayedsimilar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(d) Each notice from the Borrower pursuant to such Lender’s making such this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans if such consent would be required under Section 10.6(bor Incremental Revolving Commitment Increases.
(e) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Incremental Revolving Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to provide any Loans pursuant thereto) or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, subject in connection with an Incremental Revolving Commitment Increase, to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect reallocate Revolving Exposure on a pro rata basis among the Lenders affected therebyrelevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”extent applicable). The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(df) Incremental Facilities may be provided by any existing Lender (in its sole discretion), or, subject to (i) the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for assignments of Term Loans, Revolving Loans or Commitments, as applicable, to the relevant person and (ii) in the case of any Incremental Revolving Commitment Increase, each Issuing Bank and the Swing Line Lender, if such consent would be required under Section 9.04 for assignments of Revolving Loans and Revolving Commitments to the relevant Person.
(g) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, Additional Lender shall become a Lender for all purposes in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier datethis Agreement.
(eh) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Loans or Commitments pursuant to this Section 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of this Section 2.20 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the Borrower) and (ii) such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.20.
(i) Notwithstanding anything to the contrary hereincontrary, this Section 2.19 2.20 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (iA) after giving effect to any such Incremental Loansno Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate amount of Incremental Loans Borrower shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) Financial Performance Covenants recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) belowrelevant period), plus (yD) $175,000,000 such Incremental Revolving Facility may be secured on a pari passu basis with the Loans, (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(iiE) the Incremental Loans shall rank pari passu in right of payment interest rate margins, rate floors, fees, premiums and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable lenders thereunder, provided that no Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Revolving Facility shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or mature prior to the date that is eighteen (18) months after Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Closing Revolving Maturity Date, if (F) any Incremental Revolving Facility Amendment shall be on the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject terms and pursuant to the first proviso in this clause (vii)), with such increased amount being equated documentation to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental LendersRevolving Facilities, (G) exceeds any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorterAdministrative Agent, the remaining life to maturity thereofBorrower and the Additional Revolving Lenders and (H) and upfront fees (which shall be deemed to constitute like amount in the case of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to Revolving Commitments hereunder, the Loans would cause an maturity date of such increase in the Applicable Margin applicable to Revolving Commitment shall be the Revolving Maturity Date, such Loans, and increase in such case the interest rate floor (but not the Applicable Margin) applicable Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Loans Revolving Maturity Date and shall be increased on the same terms governing the Revolving Commitments pursuant to this Agreement; provided that to the extent of such differential between interest rate floors.
terms and documentation are not consistent with this Agreement (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, except to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which by clause (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateE) or (iiG) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required to act as “issuing bank” under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Revolving Facility without its written consent. Each Incremental Revolving Facility Closing Date”). The Borrower will use shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Effective Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches of or additions to Term Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making in an aggregate principal amount such loans, an “Incremental Lender”); provided that:
(i) that after giving effect to any such Incremental Loansthe incurrence thereof, the aggregate amount Fixed Charge Coverage Ratio for the Borrower’s most recently ended four full Fiscal Quarters for which internal financial statements are available immediately preceding the date on which such incurrence is consummated (but excluding the cash proceeds of Incremental Loans shall not exceed an amount equal to the sum of (xsuch incurrence) an unlimited amount would have been at any time so long as the Secured Net Leverage Ratio least 2.00:1.00 determined on a Pro Forma Basis Basis, as if the additional Indebtedness had been incurred at the beginning of such four-quarter period (but without such amount not to include loans which constitute Permitted Refinancing Indebtedness of the Loans hereunder), (the “Incremental Term Loans”), provided that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect thereto) no Default or Event of Default shall exist, (ii) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, all of the representations and warranties of each Credit Party set forth in Section 8 and in each other Credit Document shall be true and correct in all material respects as of such time (except to the cash proceeds remaining on the balance sheet extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date) and (iii) all Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements Term Loans (and certificates required by Section 5.1(a) or (b)all interest, as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (yfees and other amounts payable thereon) shall be available at all times Obligations under this Agreement and the other applicable Credit Documents and shall not be subject secured by the Security Documents, and guaranteed under the Guaranty, on a pari passu basis with all other Obligations of the Borrower under this Agreement secured by the Security Documents and guaranteed under the Guaranty.
(b) Incremental Term Loans that are added to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur existing tranche of Term Loans shall have identical terms to such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the existing tranche of Term Loans. All other Incremental Term Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
Term Loans; provided, however, that (iiii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) interest rate applicable to the Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule may differ from that applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orexisting Term Loans, in connection with a Limited Condition Transactionbut, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date other than with respect to any Specified Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing DateTerm Loans, if the all-in-yield “effective yield” applicable to a given tranche of Incremental Term Loans (whether in the form which, for such purposes only, shall be deemed to take account of any interest rate marginsbenchmark floors, original issue discount, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the weighted average life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity orall Lenders providing such Incremental Term Loans and the effect of any LIBO Rate or Base Rate floors, if shorter, in each case as determined in good faith by the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount)Administrative Agent, but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to Term Loans) determined as of the interest rate) with respect to initial funding date for such Incremental Term Loans exceeds the existing Loans, after giving effect “effective yield” then applicable to any increase Loans or repricing thereof that has theretofore become effective any other tranche of Incremental Term Loans (it being understood that if any such repricing was effected determined on the same basis as a refinancing tranche, provided in the original issue discount applicable to the refinanced loans shall be taken into account), preceding parenthetical) by more than 50 basis points 0.50% (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such existing Loans subject to a Yield Differential shall automatically be increased by the Yield Differential effective upon the making of the applicable Incremental Yield Differential; provided thatTerm Loans, if (ii) the final stated maturity date for a given tranche of Incremental Term Loans include an interest-rate floor greater may be later (but not sooner) than the interest rate floor Maturity Date, (iii) the amortization requirements for a given tranche of Incremental Term Loans may differ, so long as the average weighted life to maturity of such Incremental Term Loans is no shorter than the average weighted life to maturity applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such then outstanding Term Loans, and in such case (iv) the interest rate floor (but not the Applicable Margin) applicable other terms of a given tranche of Incremental Term Loans may differ if reasonably satisfactory to the Administrative Agent.
(c) Each tranche of Incremental Term Loans shall be increased in an aggregate principal amount that is not less than $25,000,000 (or such lesser amount as agreed to by the extent Administrative Agent) and shall be in an increment of $1,000,000 (provided that in each case such differential between interest rate floorsamount may be less if such amount represents all remaining availability under the limit set forth in the first sentence of Section 2.14(a)).
(bd) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.14 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender shall be obligated will have an obligation to make a portion of any Incremental Term Loan) on terms permitted in this Section 2.19 andor by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans if such consent would be required under Section 10.6(b) 13.04 for an assignment of Loans Loans, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 7 (dit being understood that all references to “the date of such Credit Event” or similar language in such Section 7 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) . No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the obligated to provide any Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateTerm Loans unless it so agrees.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 13.06 or 10.1 13.12 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, Borrowers may at any time or from time to time after the Closing Effective Date and until the Availability Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches increases in the amount of Loans the Commitments (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderCommitment Increases”); provided that:
(i) upon the effectiveness of any Incremental Amendment referred to below after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet incurrence of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition TransactionCommitment Increase, no Default or Event of Default under Section 8.1(ashall exist;
(ii) or 8.1(f)) shall exist on upon the Incremental Facility Closing Date with respect to effectiveness of any Incremental Amendment entered into referred to below, all of the representations and warranties of each Borrower set forth in connection therewith Section 7 and in each other Credit Document shall be true and correct in all material respects as of such time (except to the extent such representations and after giving effect warranties expressly relate to any Incremental Loans made thereunderan earlier date, in which case they shall be true and correct in all material respects as of such earlier date);
(iii) the aggregate amount of Commitment Increases pursuant to this Section 1.14 shall not exceed $350,000,000;
(iv) the Borrowers shall have delivered to the Administrative Agent a certificate executed by an Authorized Officer of the Borrowers certifying compliance with the requirements of preceding clauses (i), (ii) and (iii); and
(viiv) with respect to any Incremental Amendment made on or prior each Credit Party shall have delivered to the date that is eighteen Administrative Agent such other officers’ certificates, board of director (18or equivalent governing body) months after the Closing Date, if the all-in-yield resolutions and evidence of good standing (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in available under applicable law) as the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans Administrative Agent shall be increased to the extent of such differential between interest rate floorsreasonably request.
(b) Except as set forth in Section 2.19(a), the Incremental Loans Each Commitment Increase shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a in an aggregate principal amount that is not less than Pro Rata Share of $15,000,000 (or such prepaymentslesser amount as agreed to by the Administrative Agent).
(c) and Guarantees. Each notice from the Borrower to the Administrative Agent Borrowers pursuant to this Section 2.19(a) 1.14 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans Commitment Increase. Commitment Increases may be made provided, by any existing Lender or any Additional (but no existing Lender (provided that no Lender shall be obligated will have an obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateCommitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentother financial institution being called an “Additional Lender”); provided that the Administrative Agent Agent, the Swingline Lender and each Issuing Lender shall have consented (such consent not to be unreasonably withheld, conditioned withheld or delayed) to such Lender’s making or Additional Lender’s providing such Incremental Loans Commitment Increases if such consent would be required under Section 10.6(b) 13.04 for an assignment of Loans or Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Commitment Increases shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by the BorrowerBorrowers, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 1.14 shall supersede any provisions in Sections 2.12 Section 13.06 or 10.1 13.12 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver make a copy of such notice available to each of the Lenders), request one or more additional tranches or additions to an existing tranche of Loans term loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); , provided that:
that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect to any thereto) no Default shall exist, (ii) the Borrower shall be in Pro Forma Compliance with the Financial Ratios as of the last day of the most-recently ended Test Period, in each case, as if such Incremental LoansTerm Loans had been outstanding on the last day of such Test Period, (iii) the Senior Secured Leverage Ratio calculated on a Pro Forma Basis shall not be greater than 3.4 to 1.0 as of the last day of the most-recently ended Test Period (calculated as if such Incremental Term Loans had been outstanding on such last day) and (iv) the Borrower shall have delivered a certificate of a Responsible Officer to the effect set forth in clauses (i), (ii) and (iii) above and the last sentence of this paragraph (a), together with reasonably detailed calculations demonstrating compliance with clauses (ii) and (iii) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.01(a) or 6.01(b) and Section 6.02(a), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period). Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the Incremental Term Loans borrowed hereunder shall not exceed $200,000,000 minus the aggregate amount of commitments that shall have become effective pursuant to Section 2.02(a) of the ABL Credit Agreement after the Closing Date.
(b) The following terms shall apply to any Incremental Term Loans established pursuant to an amount equal to the sum of Incremental Amendment: (xi) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Term Loans shall rank pari passu in right of payment and of security with all other Term Loans, (ii) the other maturity date of such Incremental Term Loans and Commitments hereunder;
shall not be earlier than the Original Term Loan Maturity Date, (iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of such Incremental Term Loans shall not be less than the remaining Weighted Average Life to Maturity of the Initial Term Loans;
, (iv) any Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Amendment and (v) subject the applicable yield relating to clauses any term loans incurred pursuant to such Increment Amendment (iii) and (iv) aboveeach facility thereunder, the interest rates and “Incremental Facility”), as applicable, shall not exceed the amortization schedule applicable yield with respect to the Initial Term Loans by more than 0.50% per annum unless the yield applicable to any such the Initial Term Loans is increased so that the yield applicable to the applicable Incremental Facility does not exceed the yield applicable to the Initial Term Loans shall be determined by more than 0.50% per annum; provided that in determining the Borrower yield applicable to the Initial Term Loans and the applicable Incremental Lenders;
Facility, (viA) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if shorterless, the remaining life to maturity thereofof the applicable Incremental Facility), (B) and upfront customary arrangement or commitment fees payable to the Arrangers (which or their affiliates) in connection with the Initial Term Loans or to one or more arrangers (or their affiliates) of the applicable Incremental Facility shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable excluded and (C) if the Adjusted LIBO Rate in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental AmendmentFacility includes a floor in excess of 1.50%, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors excess shall be equated to the interest rate margins margin for purposes of determining whether an any increase to the Applicable Margin shall be required, but only to applicable yield under the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Initial Term Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Loans.
Term Loans and (cii) the date on which the relevant increase is requested to become effective (which shall not be less than 10 Business Days nor more than 60 days after the date of such notice). Incremental Term Loans may be made by any existing Lender or any Additional Lender (provided that but no existing Lender shall be obligated have any obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, Term Loan except to the extent not permitted in this Section 2.19, all terms and documentation with respect that it has agreed to any do so pursuant to an Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAmendment) or by any other bank, financial institution or investor (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank, financial institution or administrative natureinvestor being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans if (collectively, the “Incremental Lenders”) to the extent any such consent would be required under Section 10.6(b10.04(b) for an assignment of Loans to such Lender or Additional Incremental Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Incremental Lenders providing the relevant Incremental Terms Loans; provided that to the extent such terms and documentation are not consistent with this Agreement in any material respect (except to the extent permitted by the foregoing clauses), they shall be reasonably satisfactory to the Administrative Agent. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.01 (and for purposes thereof the making of the Incremental Term Loans shall be deemed to be a Request for Credit Extension) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions and officers’ certificates, in each case consistent with those delivered on the Closing Date under Section 4.02 (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 customary reaffirmation agreements. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans, unless it so agrees.
(d) [Reserved].
(e) Any Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section includingterms thereof, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations terms are permitted under this Section 2.19. Notwithstanding the foregoing, each of the Administrative Agent and warranties expressly relate to an earlier date, in which case such representations and warranties the Collateral Agent shall have been true and correct in all material respects the right (except where but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.19 and, if either the Administrative Agent or the Collateral Agent seeks such representations and warranties are already qualified by materialityadvice or concurrence, in which case such representation and warranty it shall be accurate permitted to enter into such amendments with the Borrower in accordance with any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower unless and until it shall have received such advice or concurrence; provided, however, that whether or not there has been a request by the Administrative Agent or the Collateral Agent for any such advice or concurrence, all respects) as of such earlier dateamendments entered into with the Borrower by the Administrative Agent or the Collateral Agent hereunder shall be binding and conclusive on the Lenders.
(ef) Notwithstanding anything to the contrary herein, this This Section 2.19 shall supersede any provisions in Sections 2.12 Section 2.14, 2.15 or 10.1 10.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Sources: Credit Agreement (Gym-Card, LLC)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the Lenders), request to effect one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, increases in the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum any Class of Revolving Commitments (xeach such increase, a “Revolving Commitment Increase”) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y))from Additional Revolving Lenders; provided thatthat at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(viA) no Default or Event of Default shall have occurred and be continuing or shall result therefrom, (or, in connection with B) the Borrower shall have delivered a Limited Condition Transaction, no Default or Event certificate of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior a Financial Officer to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (dA) above, together with reasonably detailed calculations demonstrating compliance with clause (y) of the definition of “Incremental Cap” below to the extent applicable and (C) each Revolving Commitment Increase shall be on the same terms (including interest rate margins and maturity) governing the Revolving Commitments pursuant to this Agreement. Notwithstanding anything to contrary herein, at the time of effectiveness of any given Revolving Commitment Increase, the sum of (i) the aggregate principal amount of the Revolving Commitment Increases entered into after the Effective Date and (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date shall not exceed the sum of (x) $163,000,000 and (y) up to an additional amount such other conditions as that at the parties time of such incurrence and after giving effect thereto on a Pro Forma Basis, the Consolidated First Lien Leverage Ratio is less than or equal to 2.75 to 1.00 (provided that (i) for purposes of calculating the Consolidated First Lien Leverage Ratio, any Revolving Commitment Increase being entered into shall agree be assumed to be fully drawn and (ii) the effective date proceeds of any such Incremental Amendment, an Revolving Commitment Increase or Term Commitment Increase being implemented and any such substantially concurrent Revolving Commitment Increases and Term Commitment Increases shall not be netted from Consolidated First Lien Debt) (the “Incremental Facility Closing DateCap”). The Borrower will use Each Revolving Commitment Increase shall be in a minimum principal amount of $5,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $5,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each Cap. For the avoidance of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (ordoubt, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) no Lender shall be true and correct in all material respects (except where required to provide any such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateRevolving Commitment Increase.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time on one or more occasions after the Closing Delayed Draw Term Commitment Expiration Date, by written notice from the Borrower delivered to the First Lien Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches Classes of Loans term loans (each, a “First Lien Incremental Term Facility”) and/or additional term loans of the commitments thereofsame Class of any existing Class of term loans (each, a “First Lien Incremental Term Increase”) and/or (ii) one or more increases in the amount of the Revolving Commitments of any Class (each such increase, a “First Lien Incremental Revolving Commitment Increase”, together with the First Lien Incremental Term Loans, the “First Lien Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); provided that:
(i) , both at the time of any such request and after giving effect to the effectiveness of any First Lien Incremental Facility Amendment referred to below and at the time that any such First Lien Incremental LoansTerm Loan or First Lien Incremental Revolving Commitment Increase is made or effected, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect subject to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as 1.06 in the case may beof any Limited Condition Transaction, no Event of Default shall have been or were required to have been delivered does not exceed 3.00 to 1.00 occurred and be continuing (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessexcept, in the case of this clause (y), the aggregate principal amount incurrence or provision of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the First Lien Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, Facility in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f)(i) shall exist have occurred and be continuing at the time of funding of such First Lien Incremental Facility), (y) the Borrower is in Pro Forma Compliance with the Financial Performance Covenant (for the avoidance of doubt, it is agreed that the determination of such ratio is subject to the Limited Condition Transaction provisions) and (z) the Proved Reserves Coverage Ratio of the Borrower, calculated on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and a Pro Forma Basis after giving effect to the incurrence of the First Lien Incremental Facilities and any acquisition or Investment consummated in connection therewith and all other appropriate pro forma adjustments (for the avoidance of doubt, it is agreed that the determination of such ratio is subject to the Limited Condition Transaction provisions), shall not exceed 1.75:1.00 for the most recently ended Test Period. Notwithstanding anything to the contrary herein, the aggregate principal amount of the First Lien Incremental Loans made thereunderFacilities that can be incurred at any time shall not exceed $50,000,000. Each First Lien Incremental Term Loan shall be in a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof (unless the Borrower and the First Lien Administrative Agent otherwise agree); andprovided that such amount may be less than $2,000,000 if such amount represents all the remaining availability of the aggregate principal amount of First Lien Incremental Term Loans set forth above. Each First Lien Incremental Revolving Commitment Increase shall be in a minimum principal amount of $1,000,000 and integral multiples of $250,000 in excess thereof (unless the Borrower and the First Lien Administrative Agent otherwise agree); provided that such amount may be less than $1,000,000 if such amount represents all the remaining availability of the aggregate principal amount under the First Lien Incremental Revolving Commitment Increases set forth above.
(viib) The First Lien Incremental Facilities (i) shall rank equal or junior in right of payment with respect to any Incremental Amendment made on or prior to the date that is eighteen Initial Term Loans, shall be secured only by the Collateral securing the First Lien Loan Document Obligations and shall only be guaranteed by the Loan Parties, (18ii) months after the Closing Date, if the all-in-yield (whether in the form case of any First Lien Incremental Term Loans, shall not mature earlier than the Term Maturity Date and shall not have a shorter Weighted Average Life to Maturity than the remaining Initial Term Loans, (iii) [reserved], (iv) shall have a maturity date and an amortization schedule (subject to clause (ii) above), and interest rates (including through fixed interest rates), interest margins, rate marginsfloors, upfront fees, funding discounts, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin discounts and prepayment terms and premiums for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrower and the applicable First Lien Additional Term Lenders thereunder; provided that, in the event that the Effective Yield for any First Lien Incremental Lenders) exceeds Term Facility that is equal in right of payment with the all-in yield (after giving effect to interest rate margins (including Initial Term Loans and secured by the interest rate floors (subject to Collateral on a pari passu basis with the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, Initial Term Loans is greater than the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to Effective Yield for the interest rate) with respect to the existing Initial Term Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (0.50% per annum, then the amount of such excess above 50 basis points being referred to herein as Effective Yield for the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans are equal to the Effective Yield for the First Lien Incremental Term Facility minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such First Lien Incremental Term Facility prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding) and (v) shall have other terms and conditions as agreed between the Borrower and the lenders providing any such First Lien Incremental Facilities; provided that in no event shall it be a condition to the effectiveness of, or borrowing under, any such First Lien Incremental Term Loans that any representation or warranty of any Loan Party set forth herein be true and correct, except and solely to the extent required by the First Lien Additional Term Lenders providing such differential between interest rate floorsFirst Lien Incremental Term Loans. Any First Lien Incremental Term Increase shall be on the same terms and pursuant to the same documentation applicable to the Term Loans (excluding upfront fees and customary arranger fees). Any First Lien Incremental Term Facility shall be on terms and pursuant to documentation as determined by the Borrowers and the First Lien Additional Term Lenders providing such First Lien Incremental Term Facility, subject to the restrictions and exceptions set forth above.
(bc) Except as set forth in Section 2.19(a), the The First Lien Incremental Loans Revolving Commitment Increase shall be treated substantially the same as the Loans, Class of Revolving Commitments being increased (including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepaymentsmaturity date thereof) and Guaranteesshall be considered to be part of the Class of Revolving Loans being increased (it being understood that, if required to consummate a First Lien Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Class of Revolving Commitments being increased may be increased and additional upfront or similar fees may be payable to the lenders providing the First Lien Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)). Any First Lien Incremental Revolving Commitment Increase shall be on the same terms and pursuant to the same documentation applicable to the Revolving Loans (excluding upfront fees and customary arranger fees).
(d) Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant First Lien Incremental LoansTerm Loans or First Lien Incremental Revolving Commitment Increases.
(ce) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of First Lien Incremental Loans Term Increases, First Lien Incremental Term Facility and First Lien Incremental Revolving Commitment Increases shall become Commitments (or in the case of a First Lien Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “First Lien Incremental Facility Amendment”) to this Agreement and, as appropriate, the other First Lien Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each First Lien Additional Lender, if any, and the First Lien Administrative Agent. A First Lien Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any First Lien Incremental Loans or, unless it agrees, be obligated to provide any First Lien Incremental Loans) or by any First Lien Additional Lender. First Lien Incremental Term Increases and loans under First Lien Incremental Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other First Lien Loan Documents. The First Lien Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other First Lien Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the First Lien Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, subject in connection with a First Lien Incremental Revolving Commitment Increase, to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect reallocate Revolving Exposure on a pro rata basis among the Lenders affected therebyrelevant Revolving Lenders). The effectiveness of any First Lien Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such First Lien Incremental Facility Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)and as required by this Section 2.20. The Borrower will use the proceeds of the First Lien Incremental Term Loans and First Lien Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(ef) Notwithstanding anything to the contrary hereincontrary, this Section 2.19 2.20 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: First Lien Credit Agreement (Brigham Minerals, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing First Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that (iA) after giving effect to any at the time of each such request and upon the effectiveness of each Incremental LoansRevolving Facility Amendment, the aggregate amount of Incremental Loans no Default shall not exceed an amount equal to the sum of have occurred and be continuing or shall result therefrom (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessor, in the case of this the incurrence or provision of any Incremental Revolving Facility in connection with a Limited Condition Acquisition, no Specified Event of Default shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (yA) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), the aggregate principal amount respectively, be accompanied by a reasonably detailed calculation of Indebtedness incurred under Section 6.1(b)(vi)(y) Consolidated EBITDA or Section 6.1(b)(ii)(y)); provided thatConsolidated Interest Expense, as applicable, for the avoidance of doubtrelevant period), (C) such Incremental Revolving Facility (x) shall be secured solely by Collateral on a pari passu basis with or junior basis to the Initial Revolving Loans (provided that to the extent such Incremental Revolving Facility is secured by junior Liens, the amount available to applicable parties shall have entered into the Borrower pursuant to this clause Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (y) shall be available at all times and shall not be subject to the ratio test described guaranteed by any Persons other than Loan Parties, (D) except as set forth in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xF) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) abovebelow, the interest rates rate margins, rate floors, fees, premiums and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable Additional Revolving Lenders providing such Incremental Lenders;
(vi) Revolving Facility, provided that no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Incremental Revolving Facility shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or mature prior to the date that is eighteen (18) months after Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Closing Revolving Maturity Date, if (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in-yield Administrative Agent, the Borrower and the Additional Revolving Lenders, (whether F) in the form case of interest rate marginsan increase in the Revolving Commitments hereunder, original issue discountthe maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, upfront fees such increase in the Revolving Commitment shall require no scheduled amortization or interest rate floors mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the first proviso in this clause (vii))express requirements herein, with such increased amount being equated any Incremental Revolving Facility Amendment shall be on the terms and pursuant to interest margin for purposes of determining any increase documentation to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialRevolving Facilities; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only that to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, terms and in such case the interest rate floor documentation are not consistent with this Agreement (but not the Applicable Margin) applicable to the Loans shall be increased except to the extent of such differential between interest rate floors.
permitted by clause (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateD) or (iiE) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such act as “issuing bank” and no Swingline Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with to act as a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of “swingline lender” under any such Incremental Amendment, an “Revolving Facility without its written consent. Each Incremental Revolving Facility Closing Date”). The Borrower will use shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments,Term Loans”) or (b) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase” the loans thereunderand, the together with any Incremental Term Loans, referred to herein as a “Incremental Loans,” and a Lender making such loans, an “Incremental LenderCredit Increase”); provided that:
that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist or would exist after giving effect thereto and (ii) as of the Incremental Facility Closing Date, the Borrower shall be in compliance with the provisions of Section 7.1, calculated on a pro forma basis after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal Credit Increase to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining be made on the balance sheet of such Incremental Loans) Facility Closing Date, as of the end of the most recently completed recent period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does pursuant to Section 6.1(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of the Company are available and if the last day of any such period is prior to the first test date under Section 7.1, the levels for the first test date under Section 7.1 shall be deemed to apply for this purpose. Each Credit Increase shall be in an aggregate principal amount that is not exceed 3.00 to 1.00 less than $15,000,000 (without giving effect to any contemporaneous borrowing provided that such amount may be a lesser amount if such amount represents all remaining availability under clause (y) below), plus (y) $175,000,000 (less, the limit set forth in the case of this clause (ynext sentence and there shall be no more than four such increases). Notwithstanding anything to the contrary herein, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and Credit Increases shall not be subject to the ratio test described in foregoing clause exceed $75,000,000. The Incremental Term Loans (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xA) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
applicable Facilities, (iiiB) the Incremental Loans shall not mature earlier than the Tranche B Maturity Date;
(iv) the Incremental Loans Date and shall have a Weighted Average Life weighted average life to Maturity no shorter than the Weighted Average Life maturity (pursuant to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the such amortization schedule applicable to any such Incremental Loans shall schedules as may be determined by the Borrower and the applicable Incremental Lenders;
(vilenders thereof) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after no shorter than the Closing Date, if then-remaining weighted average life to maturity of the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Tranche B Term Loans made thereunder (as the aggregate amount thereof may have been reduced and as the scheduled amortization thereof may have been modified as of such date) and (C) will accrue interest at rates determined by the Borrower and the lenders providing such Incremental Term Loans, which rates may be higher or lower than the rates applicable to the Tranche B Term Loans, provided that if the initial yield on such Incremental LendersTerm Loans (as determined by the Administrative Agent to be equal to the sum of (1) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors margins on such Incremental Term Loans and (subject to 2) if such Incremental Term Loans are initially made at a discount or the first proviso Lenders making the same in this clause syndication thereof receive a fee (vii))), original issue in the form of discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount)or otherwise, but excluding any arrangementunderwriting or arrangement fee paid for the account of an underwriter or arranger and also, structuring for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to similar transaction) directly or indirectly from the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing trancheParent, the original issue discount applicable to Borrower, any Subsidiary or Affiliate of the refinanced loans shall be taken into account), by more than 50 basis points foregoing for doing so (the amount of such excess above 50 basis points discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “Incremental OID,” with the amount of such Incremental OID being quantified by dividing it by an assumed four year life to maturity) exceeds (such excess, the “Incremental Yield Differential”) the sum of (x) the interest margin for Initial Tranche B Term Loans as of the Amendment and Restatement Effective Date and (y) if the Initial Tranche B Term Lenders in syndication thereof received upfront or similar fees (in the form of discount or otherwise, but excluding any underwriting or arrangement fee paid for the account of an underwriter or arranger and also, for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or similar transaction) directly or indirectly from the Parent, the Borrower, any Subsidiary or any Affiliate of the foregoing for making the Initial Tranche B Term Loans (the amount of such fees, expressed as a percentage of the sum of the original aggregate amount of the Initial Tranche B Term Commitments, being referred to herein as “Initial OID”), then, upon with the effectiveness amount of such Incremental AmendmentInitial OID being quantified by dividing it by an assumed four year life to maturity, then the Applicable Margin then in effect for any outstanding Tranche B Term Loans shall automatically be increased by the Incremental Yield Differential, effective upon the making of the Incremental Term Loans; provided thatthat except as provided in preceding clauses (B) or (C), if the Incremental Loans include an interest-rate floor greater than the interest rate floor terms and conditions applicable to Incremental Term Loans may be materially different from those of the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only Tranche B Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably acceptable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans Administrative Agent. The Revolving Commitment Increases shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially on the same terms as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and GuaranteesRevolving Commitments. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.23 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Tranche B Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, Term Loan and each existing Revolving Lender will have the right to the extent not permitted in this Section 2.19, all terms and documentation with respect to provide a portion of any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, if such consent would be required under Section 10.6(b) 10.6 for an assignment of Tranche B Term Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) 2.23 and the use of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyproceeds of such Credit Increase. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in the Incremental Amendment. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, the participations held by the Revolving Lenders in the L/C Exposure and Swingline Loans immediately prior to such increase will be reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective Revolving Percentages after giving effect to such Revolving Commitment Increase. If, on the date of a Revolving Commitment Increase, there are any Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in accordance with this Agreement on the date of effectiveness of such Revolving Commitment Increase (but the Borrower may finance such prepayment with a concurrent borrowing of Revolving Loans from the Revolving Lenders in accordance with their Revolving Percentages after giving effect to such Revolving Commitment Increase). The Borrower will may use the proceeds of the Incremental Loans each Credit Increase for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, Agreement unless otherwise agreed in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) such Credit Increase. Each Credit Increase shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and designated as of the Incremental Facility Closing Date as if made on and as of such date, except an increase to the extent such representations and warranties expressly relate to an earlier dateExtended Revolving Commitments or the Non-Extended Revolving Commitments, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified as determined by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental AmendmentLenders providing such Credit Increase.
Appears in 1 contract
Sources: Amendment Agreement (Radiation Therapy Services Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time on one or more occasions after the Closing Date, by written notice from the Borrower delivered to the Administrative Agent request (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request i) one or more additional tranches Classes of Loans term loans or additional term loans of the same Class of any existing Class of term loans (the commitments thereof“Incremental Term Loans”) and/or (ii) one or more increases in the amount of the Revolving Commitments (each such increase, an “Incremental Revolving Commitment Increase” and, together with the Incremental Term Loans, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); provided that:
, (ix) both at the time of any such request and after giving effect to the effectiveness of any Incremental Facility Amendment referred to below and (y) at the time that any such Incremental LoansTerm Loan or Incremental Revolving Commitment Increase is made or effected, the aggregate amount (i) no Event of Incremental Loans Default shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements have occurred and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessbe continuing; provided further that, in the case of this clause (y), Incremental Term Loans the aggregate principal amount proceeds of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided thatwhich will be used to finance a Limited Condition Acquisition, for the avoidance purposes of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi1) no Default or Event of Default (or, in connection shall have occurred and be continuing at the time that the definitive documentation with a respect to such Limited Condition Transaction, Acquisition is entered into by the parties thereto and (2) no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f)(i) shall exist on have occurred and be continuing at the time that any such Incremental Facility Closing Date with respect Term Loan is made, (ii) [reserved], and (iii) subject to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether customary “SunGard” provisions in the form case of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to an Incremental Term Loan the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes proceeds of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed used to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as fund a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest12 AMERICAS 107083989 2036643.08-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerNYCSR03A - MSW Limited Condition Acquisition, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party set forth in or pursuant to the Article III hereof and in any other Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) Document shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be accurate true and correct in all respects) on and as of the date of the effectiveness of any Incremental Facility Closing Date Amendment with the same effect as if though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects, as the case may be) as of such earlier date.
(e) . Notwithstanding anything to the contrary herein, this Section 2.19 the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall supersede any provisions not exceed the Incremental Cap at such time. Each Incremental Facility shall be in Sections 2.12 or 10.1 to the contrary a minimum principal amount of $2,000,000 and integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may amend Section 2.12 to implement any be less than $2,000,000 as the case may be, if such amount represents all the remaining availability under the aggregate principal amount of Incremental AmendmentFacilities set forth above.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “New Term Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (the commitments thereofa “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments,”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” the loans thereunderand, together with any New Term Commitments, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Commitments”); provided that (i) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or the First Amendment Transactions, no Specified Default) shall exist and (ii) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Specified Representations shall be true and correct in all material respects. Each tranche of New Term Loans or New Revolving Commitments shall be in an aggregate principal amount that is not less than C$15,000,000 or US$15,000,000, as applicable (provided that such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(b) The terms and provisions of New Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Commitments; provided, that:
(i) after giving such New Commitments shall (x) rank pari passu in right of payment and security with the Initial Term Loans made on the Closing Date, the 2018 Incremental Term Loans and, the 2020 Refinancing Term Loans and the 2023 Refinancing Term Loans, (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) New Term Loans shall (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for any Class of Term Loans outstanding as of the applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such Incremental New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date (or, with respect to the 2023 Refinancing Term Loans, the aggregate amount six-month anniversary of the Fourth Amendment Effective Date) pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans and, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans and, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of such same currency shall not exceed an amount be increased to the extent necessary so that the All-In Yield of such Initial Term Loans or, 2018 Incremental Term Loans or 2023 Refinancing Term Loans, as applicable, is equal to the sum All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, due to the application or imposition of a Eurocurrency RateTerm SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency RateTerm SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, (y) through an increase in the Applicable Rate for such Initial Term Loan or, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, or (z) any combination of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below)above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, plus less than pro rata basis or greater than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (y) $175,000,000 (less, but not greater than a pro rata basis except in the case of this clause a prepayment of such New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(yvii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be deemed to be reasonably satisfactory to the Administrative Agent), and (2) pricing, fees, rate floors, premiums, optional payment and redemption terms (subject to the preceding clauses (i) through (viii)), the aggregate principal amount terms and conditions applicable to such New Revolving Commitments, New Term Commitments and New Term Loans may be different from those of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided thatthe Term Loans, for the avoidance of doubt, the amount available to the extent (x) such differences are agreed upon by the Borrower pursuant and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as applicable, and are reasonably acceptable to this clause the Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be available at all times identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans being increased, as existing on the respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Commitments shall not be subject to include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the ratio test described in foregoing clause benefit of the Term Commitments (xand any Term Loans made pursuant thereto); provided, further, that the Borrower terms of any New Revolving Commitment may incur such Indebtedness under any clause (x) include a financial maintenance covenant or (y) above in such order related equity cure so long as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans Administrative Agent shall have a Weighted Average Life been given prompt written notice thereof and this Agreement is amended to Maturity no shorter than include such financial maintenance covenant or related equity cure for the Weighted Average Life to Maturity benefit of the Loans;
each Facility (v) subject to clauses (iii) and (iv) aboveprovided, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orfurther, in connection with a Limited Condition Transactionhowever, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the interest rate floor benefit of such New Revolving Commitment or covenant only applicable to to, or for the Loansbenefit of, the differential between such interest rate floors New Revolving Commitment, such financial maintenance covenant shall be equated to automatically included in this Agreement only for the interest rate margins benefit of each New Revolving Commitment hereunder (and not for purposes the benefit of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floorsany other Facility hereunder)).
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans or New Revolving Commitments may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender including the Administrative Agent in its capacity as an existing Lender) shall be obligated have any obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental New Term Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Dateor New Revolving Commitments) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or New Revolving Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such New Term Loans or New Revolving Commitments is an assignment of such New Term Loans or New Revolving Commitments to such Person. Commitments in respect of Incremental New Term Loans or New Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including2.14 and, subject in the case of any Incremental Amendment with respect to clause (b) New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of this Section 2.19, amendments the type being provided pursuant to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyNew Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental New Term Loans or New Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any New Term Loans or New Revolving Commitments unless it so agrees.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[reserved].
(e) Notwithstanding anything to the contrary herein, Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement. This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or 10.1 Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The So long as the Delayed Draw Termination Date has occurred or will occur contemporaneously with the making of any Incremental Term Loans contemplated hereby, the Borrower may, may at any time or from time to time after the Closing Dateon one or more occasions, by written notice from the Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request one or more additional tranches Classes of Loans term loans hereunder or additional term loans of the same Class of any existing Class of term loans hereunder (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
, subject to Section 1.06, at the time that any such Incremental Term Loan is made or effected (i) and also immediately after giving effect to any such Incremental Loansthereto), the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (A) (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or, y) in connection with the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition TransactionTransaction in which an LCT Election has been made, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f)(i) shall exist have occurred and be continuing at the time that any such Incremental Term Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Term Loan the proceeds of which shall be used to fund a Limited Condition Transaction in which an LCT Election has been made, each of the representations and warranties made by any Loan Party set forth in Article III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the Incremental Facility Closing Date with respect to date of the effectiveness of any Incremental Amendment entered into with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in connection therewith which case such representations and warranties shall be true and correct in all material respects (or in all respects, as the case may be) as of such earlier date. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Term Loans that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Term Loan shall be in a minimum principal amount of $5,000,000 and after giving effect to any Incremental Loans made thereunderintegral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); andprovided that such amount may be less than either of the foregoing amounts if either such amount represents all the remaining availability under the aggregate principal amount of Incremental Term Loans permitted to be incurred pursuant to this paragraph (a).
(viib) The Incremental Term Loans (i) shall rank equal in right of payment with respect to any Incremental Amendment made the Term Loans, shall be secured on or prior to a pari passu basis only by the date that is eighteen Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (18ii) months after shall not mature earlier than the Closing Term Maturity Date, if (iii) shall not have a shorter Weighted Average Life to Maturity than the all-in-yield remaining Term Loans, (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors iv) shall have a maturity date (subject to the first proviso in this preceding clause (viiii)), with such increased amount being equated to and interest margin rates (including through fixed interest rates), interest margins, rate floors, upfront fees, funding discounts, original issue discounts and prepayment terms and premiums for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Additional Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differentialthereunder; provided that, if in the event that the Effective Yield for any Incremental Term Loans include an interest-rate floor is greater than the interest rate floor applicable to Effective Yield for the LoansInitial Term Loans by more than 0.50% per annum, then the differential between such interest rate floors shall be equated to Effective Yield for the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.50% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be increased to an amount not to exceed the “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (v) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Lenders of such differential between interest rate floorsIncremental Term Loans elect to receive a lesser share of any such prepayment); and (vi) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, except with respect to matters contemplated by clauses (iv) and (v) above, the terms and conditions of any such Incremental Term Loans shall not be materially more restrictive to Holdings, the Borrower and its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than the terms of the Initial Term Loans unless (1) such term is also added for the benefit of any corresponding existing Term Loans without the consent of the Administrative Agent or any Lender being required, (2) any such provisions apply after the Latest Maturity Date at the time of incurrence of such Incremental Term Loan or (3) such terms shall be reasonably satisfactory to the Required Lenders.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.20 shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(cd) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Term Loan may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that each existing Lender shall have the right, but not the obligation, to participate in any Incremental Term Loan or, unless it agrees, to be obligated to provide any Term Loans pursuant thereto) or by any Additional Lender. Incremental Term Loans shall be “Term Loans” for all purposes of this Agreement and the other Loan Documents. The Incremental Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.20. The effectiveness of any Incremental Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Term Loan) pursuant to such Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”extent applicable). The Borrower will use the proceeds of the Incremental Term Loans to finance Permitted Acquisitions and to pay any fees, costs and expenses incurred in connection therewith.
(e) Incremental Term Loans may be provided by any existing Lender (in its sole discretion), or, subject to the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for any purpose not prohibited by assignments of Term Loans or Commitments, as applicable, to an Additional Lender.
(f) Each Additional Lender shall become a Lender for all purposes in connection with this Agreement.
(dg) Each The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Term Loans or Commitments pursuant to this Section 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of this Section 2.20 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the representations Borrower and warranties made by any Loan Party at the direction of the Required Lenders) and (ii) such technical amendments as may be necessary or appropriate in or pursuant to the Loan Documents (or, reasonable opinion of the Administrative Agent and the Borrower in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where the establishment of such representations and warranties are already qualified by materialitynew Classes or sub-Classes, in which each case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateterms consistent with this Section 2.20.
(eh) Notwithstanding anything to the contrary hereincontrary, this Section 2.19 2.20 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the Lenders), request to effect one or more additional revolving credit facility tranches of Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Revolving Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, or increases in the aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”; together with the Incremental Loans Revolving Loans, “Incremental Revolving Facilities”) from Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) no Event of Default shall not exceed an amount equal to have occurred and be continuing or shall result therefrom, (B) the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio Borrower shall be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) covenants contained in Sections 6.12 and 6.13 recomputed as of the most last day of the most-recently completed period ended fiscal quarter of four consecutive the Borrower, (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarters quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(c), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Cash Interest Expense for the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) belowrelevant period), plus (yD) $175,000,000 (less, in the case of this clause (y)a Revolving Commitment Increase, the aggregate principal amount maturity date of Indebtedness incurred under Section 6.1(b)(vi)(y) such Revolving Commitment Increase shall be the Revolving Maturity Date, such Revolving Commitment Increase shall require no scheduled amortization or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available mandatory commitment reduction prior to the Borrower Revolving Maturity Date and such Revolving Commitment Increase shall be on the same terms governing the Revolving Commitments pursuant to this clause Agreement, (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(iiE) the Incremental Loans shall rank pari passu in right of payment interest rate margins and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule maturity applicable to any such Incremental Revolving Loans shall be determined by the Borrower and the applicable lenders thereunder, (F) any Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Revolving Facility Amendment shall exist be on the Incremental Facility Closing Date with respect terms and pursuant to any Incremental Amendment entered into in connection therewith (and after giving effect documentation to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders with the applicable Incremental LendersRevolving Facilities and (G) exceeds any Incremental Revolving Loan may be provided in any currency as mutually agreed among the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorterAdministrative Agent, the remaining life to maturity thereof) Borrower and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialAdditional Revolving Lenders; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only that to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, terms and in such case the interest rate floor documentation are not consistent with this Agreement (but not the Applicable Margin) applicable to the Loans shall be increased except to the extent of such differential between interest rate floors.
permitted by clause (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateE) or (iiG) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank or Swingline Lender shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required to act as “issuing bank” or “swingline lender” under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental AmendmentRevolving Facility without its written consent. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Revolving Facilities, (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date and (iii) the aggregate principal amount of all Additional Notes issued after the Effective Date pursuant to Section 6.01(a)(xxiii) shall not exceed the sum of (x) $150,000,000 and (y) if on a Pro Forma Basis, the First Lien Leverage Ratio is less than or equal to 4.00 to 1.00 (provided that for purposes of calculating the First Lien Leverage Ratio any Revolving Commitment Increase shall be assumed to be fully drawn), up to an additional $150,000,000 (the “Incremental Facility Closing DateCap”). The Borrower will use the proceeds of the Each Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) Revolving Facility shall be true in a minimum principal amount of $10,000,000 and correct integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as the remaining availability under the aggregate principal amount of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateRevolving Facilities set forth above.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time on one or more occasions after the Closing Date, by written notice from the Borrower delivered to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders)Agent, request (i) one or more additional tranches Classes of Loans term loans hereunder or additional term loans of the same Class of any existing Class of term loans hereunder (the commitments thereof“Incremental Term Loans”) and/or (ii) one or more increases in the amount of the Revolving Commitments hereunder (each such increase, an “Incremental Revolving Commitment Increase” and, together with the Incremental Term Loans, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); provided that:
, subject to Section 1.06, at the time that any such Incremental Term Loan or Incremental Revolving Commitment Increase is made or effected (i) and also immediately after giving effect to any such Incremental Loansthereto), the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (A) (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default shall have occurred and be continuing or would result therefrom and (or, y) in connection with the case of Incremental Term Loans the proceeds of which will be used to finance a Limited Condition TransactionTransaction in which an LCT Election has been made, no Default or Event of Default under Section 8.1(a7.01(a), (b), (h) or 8.1(f)(i) shall exist have occurred and be continuing at the time that any such Incremental Term Loan is made and (B) subject to customary “SunGard” provisions in the case of an Incremental Term Loan the proceeds of which shall be used to fund a Limited Condition Transaction in which an LCT Election has been made, each of the representations and warranties made by any Loan Party set forth in Article III and in any other Loan Document shall be true and correct in all material respects (except that any representation and warranty that is qualified as to “materiality” or “Material Adverse Effect” shall be true and correct in all respects) on and as of the date of the effectiveness of any Incremental Facility Amendment with the same effect as though made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall be true and correct in all material respects (or in all respects, as the case may be) as of such earlier date. Notwithstanding anything to contrary herein, the aggregate principal amount of the Incremental Facilities that can be incurred at any time shall not exceed the Incremental Cap at such time. Each Incremental Facility Closing Date shall be in a minimum principal amount of (x) $5,000,000 in the case of Incremental Term Loans, or (y) $2,000,000 in the case of Incremental Revolving Commitment Increases and, in either case, integral multiples of $500,000 in excess thereof (unless the Borrower and the Administrative Agent otherwise agree); provided that such amount may be less than either of the foregoing amounts if either such amount represents all the remaining availability under the aggregate principal amount of Incremental Facilities set forth above.
(b) The Incremental Term Loans (a) shall rank equal in right of payment with the Term Loans, shall be secured on a pari passu basis only by the Collateral securing the Secured Obligations and shall only be guaranteed by the Loan Parties, (b) except with respect to any an aggregate principal amount of Incremental Amendment entered into in connection therewith Term Loans not greater than the Fixed Incremental Amount, shall not mature earlier than the Term Maturity Date, (and after giving effect to any Incremental Loans made thereunder); and
(viic) except with respect to any an aggregate principal amount of Incremental Amendment made on or prior Term Loans not greater than the Fixed Incremental Amount, shall not have a shorter Weighted Average Life to Maturity than the remaining Term Loans, (d) shall have a maturity date that is eighteen (18) months after the Closing Datesubject to preceding clause (b)), if the all-in-yield and interest rates (whether in the form of including through fixed interest rates), interest margins, rate marginsfloors, upfront fees, funding discounts, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin discounts and prepayment terms and premiums for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Term Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Additional Term Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differentialthereunder; provided that, if the except with respect to (A) an aggregate principal amount of Incremental Term Loans include an interest-rate floor not greater than the interest rate floor applicable Fixed Incremental Amount, (B) any Incremental Term Loans used to finance a Permitted Acquisition or other similar permitted Investment or (C) any Incremental Term Loans that mature more than one (1) year after the LoansTerm Maturity Date, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to event that the Effective Yield for any Incremental Term Loans would cause an increase in incurred during the Applicable Margin applicable to such Loansfirst twelve (12) months after the Closing Date is greater than the Effective Yield for the Initial Term Loans by more than 0.7550% per annum, and in such case then the interest rate floor (but not Effective Yield for the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), necessary so that the Effective Yield for the Initial Term Loans is equal to the Effective Yield for the Incremental Term Loans minus 0.7550% per annum (provided that the “LIBOR floor” applicable to the outstanding Initial Term Loans shall be treated substantially increased to an amount not to exceed the same as “LIBOR floor” applicable to such Incremental Term Loans prior to any increase in the Applicable Rate applicable to such Initial Term Loans then outstanding); (e) shall be prepaid with the proceeds of voluntary or mandatory prepayment events on a pro rata basis with other then outstanding Term Loans (unless the Lenders or Additional Term Lenders of such Incremental Term Loans elect to receive a lesser share of any such prepayment); and (f) may otherwise have terms and conditions different from those of the Initial Term Loans; provided that, including except with respect to mandatory and voluntary prepayments matters contemplated by clauses (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepaymentsa), (b), (c), (d) and Guarantees. Each notice from the Borrower (e) above but subject to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
clause (c) below, the terms and conditions of any such Incremental Term Loans may be made by any existing Lender or any Additional Lender (provided that no Lender Incremental Revolving Commitment Increase, as applicable, shall not be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on to Holdings, the Group MembersBorrower and its Restricted Subsidiaries, when taken as a whole, as reasonably determined by the Borrower in good faith, than those with respect to the terms of the Initial Term Loans or Revolving Loans, as applicable, unless (but excluding 1) such term is also added for the benefit of any terms applicable corresponding existing Term Loans or Revolving Loans, as applicable, without the consent of the Administrative Agent or any Lender being required, (2) any such provisions apply after the Latest Maturity Date) Date at the time of incurrence of such Incremental Facility or (ii3) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, such terms shall in each case be reasonably satisfactory to the Administrative Agent; provided that .
(c) The Incremental Revolving Commitment Increase shall be treated the Administrative Agent same as the Revolving Commitments (including with respect to maturity date thereof) and shall have consented (such consent not be considered to be unreasonably withheldpart of the Revolving Loans and Revolving Commitments (it being understood that, conditioned if required to consummate an Incremental Revolving Commitment Increase, the pricing, interest rate margins, rate floors and undrawn commitment fees on the Revolving Commitments may be increased and additional upfront or delayedsimilar fees may be payable to the lenders providing the Incremental Revolving Commitment Increase (without any requirement to pay such fees to any existing Revolving Lenders)).
(d) Each notice from the Borrower pursuant to such Lender’s making such this Section 2.20 shall set forth the requested amount of the relevant Incremental Term Loans if such consent would be required under Section 10.6(bor Incremental Revolving Commitment Increases.
(e) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Incremental Revolving Commitment Increases shall become Commitments (or in the case of an Incremental Revolving Commitment Increase to be provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. An Incremental Facility may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Facility or, unless it agrees, be obligated to provide any Loans pursuant thereto) or by any Additional Lender. Incremental Term Loans and loans under Incremental Revolving Commitment Increases shall be a “Loan” for all purposes of this Agreement and the other Loan Documents. The Incremental Facility Amendment may, subject to Section 2.20(b), without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriatenecessary, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.20 (including, subject in connection with an Incremental Revolving Commitment Increase, to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect reallocate Revolving Exposure on a pro rata basis among the Lenders affected therebyrelevant Revolving Lenders). The effectiveness of any Incremental Facility Amendment and the occurrence of any credit event (including the making (but not the conversion or continuation) of a Loan and the issuance, increase in the amount, or extension of a Letter of Credit thereunder) pursuant to such Incremental Facility Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree and as required by this Section 2.20 and Section 4.02 (but otherwise subject to Section 1.06 to the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”extent applicable). The Borrower will use the proceeds of the Incremental Term Loans and Incremental Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(df) Incremental Facilities may be provided by any existing Lender (in its sole discretion), or, subject to (i) the consent of the Administrative Agent (not to be unreasonably withheld or delayed) if such consent would be required under Section 9.04 for assignments of Term Loans, Revolving Loans or Commitments, as applicable, to the relevant person and (ii) in the case of any Incremental Revolving Commitment Increase, each Issuing Bank and the Swing Line Lender, if such consent would be required under Section 9.04 for assignments of Revolving Loans and Revolving Commitments to the relevant Person.
(g) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, Additional Lender shall become a Lender for all purposes in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier datethis Agreement.
(eh) The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into (i) any Incremental Facility Amendment and/or any amendment to any other Loan Document as may be necessary in order to (A) establish new Classes or sub-Classes in respect of Loans or Commitments pursuant to this Section 2.20 and (B) implement any restrictive terms or conditions permitted or required to be provided to the Lenders pursuant to clause (b) of this Section 2.20 (which amendment shall be entered into by the Administrative Agent upon the reasonable request of the Borrower) and (ii) such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new Classes or sub-Classes, in each case on terms consistent with this Section 2.20.
(i) Notwithstanding anything to the contrary hereincontrary, this Section 2.19 2.20 shall supersede any provisions in Sections 2.12 Section 2.18 or 10.1 Section 9.02 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Atlas Technical Consultants, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at any time or from From time to time on or after the Closing Date, by notice from subject to the terms and conditions set forth herein, the Borrower may, upon ten (10) Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of Loans term loans (the commitments thereof“Incremental Term Loans”) or one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); , provided that:
that at the time of the effectiveness of each Incremental Facility Amendment (i) no Default or Event of Default has occurred and is continuing or shall result therefrom, (ii) the Borrower and its Subsidiaries shall be in pro forma compliance with each of the covenants set forth in ARTICLE VI as of the last day of the most recently ended Fiscal Quarter after giving effect to any such Incremental Revolving Commitments (assuming for such purpose that such Incremental Revolving Commitments are fully drawn at such time) or Incremental Term Loans, as applicable, (iii) each of the aggregate amount of Incremental Loans conditions set forth in Section 3.2 shall not exceed an amount equal to have been satisfied and (iv) the sum of (x) an unlimited amount at any time so long Administrative Agent shall have received from the Borrower such legal opinions, resolutions, certificates and other documents as the Secured Net Leverage Ratio on a Pro Forma Basis (Administrative Agent may reasonably request. Notwithstanding anything to contrary herein, but without giving effect subject to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (ye) immediately below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for all Incremental Facilities shall not exceed the avoidance sum of doubt, the amount available to the Borrower pursuant to this clause (y) $200,000,000. Each Incremental Facility shall be available at in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $10,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all times and shall not be subject the remaining availability hereunder as set forth above of if the Administrative Agent agrees in writing to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the a lesser minimum amount. Each Incremental Loans Facility shall rank pari passu in right of payment payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of security with the other Loans and Commitments Obligations hereunder;.
(iiib) Except with respect to the Term Loan A-1, any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loan A and (ii) other than amortization, pricing or maturity date, shall have the same terms as the Term Loans or such other terms as are reasonably satisfactory to the Administrative Agent, provided that (A) any Incremental Loans Term Loan shall not mature have a final maturity date earlier than the Term Loan A Maturity Date;
Date and (ivB) the any Incremental Loans Term Loan shall not have a Weighted Average Life to Maturity no that is shorter than the Weighted Average Life to Maturity of the Loans;then-remaining Term Loan A.
(vc) subject Any Incremental Revolving Commitment shall be on the same terms and conditions as, and pursuant to clauses (iii) and (iv) abovethe same documentation as applicable to, the interest rates Revolving Commitments. From and after the amortization schedule applicable making of an Incremental Term Loan or the addition of any Incremental Revolving Commitments pursuant to any this Section, such Incremental Loans shall be determined by the Borrower Term Loan and the applicable such revolving loan funded pursuant to an Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment shall be deemed to constitute like amount of original issue discount)a “Loan”, but excluding any arrangement“Term Loan” and/or “Revolving Loan”, structuring or other fees payable in connection therewith that are not shared with as applicable, hereunder for all Lenders providing such Incremental Loanpurposes hereof, which shall not be included and equated to the interest rate) with respect to the existing Loansand, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including clause (b) immediately above with respect to mandatory Incremental Term Loans, shall be subject to the same terms and voluntary prepayments conditions as each other Term Loan or Revolving Loan made pursuant to this Agreement.
(unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepaymentsd) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans and/or Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those Revolving Commitments. Except with respect to the Loans Term Loan A-1, each Lender shall have the right for a period of ten (but excluding any terms applicable after the Maturity Date10) or (ii) relate day following receipt of such notice, to provisions of a mechanical (including with respect elect by written notice to the Collateral Borrower and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; Agent to provide the requested Incremental Facility by a principal amount equal to its Pro Rata Share of such Incremental Facility. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to provide such Incremental Facility. If any Lender shall elect not to provide such Incremental Facility pursuant to this Section 2.24, the Borrower may designate any other bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), which agrees to provide such Incremental Facility (any such other bank or other financial institution being called an “Additional Lender”) and in the case of any Additional Lender, agrees to become a party to this Agreement, provided that the Issuing Bank (in the case of an increase through an Incremental Revolving Commitment) and the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Commitment if such consent would be required under Section 10.6(b10.4(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Any Additional Lender shall become Commitments a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; provided, that no Incremental Facility Amendment shall be required for the Term Loan A-1 if the Administrative Agent and the Borrower so determine. The No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders and/or any existing Lender who has elected to provide any Incremental Term Loans or increase its Revolving Commitment with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section includingSection. Upon each increase in the Revolving Commitments pursuant to this Section, subject (a) each Lender holding a Revolving Commitment immediately prior to clause such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender holding a Revolving Commitment (including each such Incremental Revolving Lender) will equal its Pro Rata Share and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such increase of the Revolving Commitments be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with (a). The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. This Section 2.24(d) shall supersede any provisions in Section 2.21(a) and Section 10.2 to the contrary.
(e) If the Term Loan A-1 Commitment provided on the Closing Date is less than $50,000,000, the Borrower shall have the right for a period of 30 days following the Closing Date to obtain an Incremental Term Loan in accordance with this Section 2.192.24, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness principal amount of any such Incremental Amendment Term Loan shall be (unless waived or not required by excluded for purposes of determining the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition limitations set forth in clause (da) below and such other conditions as the parties thereto shall agree of this Section 2.24; provided, that (the effective date of any i) such Incremental AmendmentTerm Loan shall for all purposes be deemed to be the “Term Loan A-1” and shall be subject to the terms, an conditions and provisions herein related to the “Term Loan A-1” and (ii) in no event shall such Incremental Facility Term Loan, together with any portion of the Term Loan A-1 funded on the Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement, if any, exceed $50,000,000.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
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Incremental Credit Extensions. (ai) The Borrower may, at At any time or and from time to time after the Closing ClosingFirst Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that (iA) after giving effect to any at the time of each such request and upon the effectiveness of each Incremental LoansRevolving Facility Amendment, the aggregate amount of Incremental Loans no Default shall not exceed an amount equal to the sum of have occurred and be continuing or shall result therefrom (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessor, in the case of this the incurrence or provision of any Incremental Revolving Facility in connection with a Limited Condition Acquisition, no Specified Event of Default shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (yA) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), the aggregate principal amount respectively, be accompanied by a reasonably detailed calculation of Indebtedness incurred under Section 6.1(b)(vi)(y) Consolidated EBITDA or Section 6.1(b)(ii)(y)); provided thatConsolidated Interest Expense, as applicable, for the avoidance of doubtrelevant period), (C) such Incremental Revolving Facility (x) shall be secured solely by Collateral on a pari passu basis with or junior basis to the Initial Revolving Loans (provided that to the extent such Incremental Revolving Facility is secured by junior Liens, the amount available to applicable parties shall have entered into the Borrower pursuant to this clause Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (y) shall be available at all times and shall not be subject to the ratio test described guaranteed by any Persons other than Loan Parties, (D) except as set forth in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xF) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) abovebelow, the interest rates rate margins, rate floors, fees, premiums and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable Additional Revolving Lenders providing such Incremental Lenders;
(vi) Revolving Facility, provided that no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Incremental Revolving Facility shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or mature prior to the date that is eighteen (18) months after Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Closing Revolving Maturity Date, if (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in-yield Administrative Agent, the Borrower and the Additional Revolving Lenders, (whether F) in the form case of interest rate marginsan increase in the Revolving Commitments hereunder, original issue discountthe maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, upfront fees such increase in the Revolving Commitment shall require no scheduled amortization or interest rate floors mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the first proviso in this clause (vii))express requirements herein, with such increased amount being equated any Incremental Revolving Facility Amendment shall be on the terms and pursuant to interest margin for purposes of determining any increase documentation to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialRevolving Facilities; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only that to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, terms and in such case the interest rate floor documentation are not consistent with this Agreement (but not the Applicable Margin) applicable to the Loans shall be increased except to the extent of such differential between interest rate floors.
permitted by clause (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateD) or (iiE) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided, further, that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as a “swingline lender” under any such Incremental Revolving Facility without its written consent. Each Incremental Revolving Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that the Administrative Agent shall have consented (such consent not to amount may be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans less than $10,000,000 if such consent amount represents all the remaining availability under the Incremental Cap.
(ii) At any time and from time to time after the ClosingFirst Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative
(iii) Notwithstanding anything to the contrary herein, no Incremental Facility may be established or incurred under this Section 2.18 in an amount that would exceed the Incremental Cap at the time of such establishment or incurrence. Notwithstanding anything herein to the contrary, no existing Lender will be required under to participate in any Incremental Revolving Facility or Incremental Term Facility without its consent.
(i) Each notice from the Borrower pursuant to this Section 10.6(bshall set forth the requested amount of the relevant Incremental Revolving Facility or Incremental Term Facility.
(ii) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of any Incremental Loans Revolving Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each the applicable Additional Lender, if any, Revolving Lenders and the Administrative Agent. The Incremental Revolving Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to participate in any Incremental Revolving Facility) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section including(including to provide for the issuance of letters of credit and swingline loans thereunder and to provide for the treatment of defaulting lenders). Subject to Section 1.08, subject in the case of an Incremental Revolving Facility incurred to clause (b) of this Section 2.19finance a Limited Condition Acquisition, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Revolving Facility Amendment shall be (shall, unless waived or not required otherwise agreed to by the Incremental Lenders in connection with a Limited Condition Transaction) Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.Incremental
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases to the then-existing Term Loans or one or more additional tranches Classes of Loans Term Loans, in each case, which shall be denominated in Dollars (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
that (i) after giving effect to except as otherwise agreed by the lenders providing the relevant Incremental Term Loans in connection with any such Incremental Loans, the aggregate amount of Incremental Loans Limited Condition Acquisition (which shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (xSection 2.15(b); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction), no Default or Event of Default under Section 8.1(ashall have occurred at the time of the incurrence of such Incremental Term Loans and be continuing or result therefrom, (ii) or 8.1(f)) no Lender shall exist on the Incremental Facility Closing Date with respect be obligated to provide any Incremental Term Loans as a result of any such request by the Borrower, and until such time, if any, as such ▇▇▇▇▇▇ has agreed in writing in its sole discretion to provide an Incremental Term Loan and executed and delivered to the Administrative Agent an Incremental Amendment entered into as provided below in connection therewith this Section 2.15, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) each increase in then-existing Term Loans or additional Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 and a whole multiple 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 the next sentence or the Administrative and the Required Lenders otherwise consent), (iv) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, certifying, to the best of such officer’s knowledge, (x) compliance with the requirements of preceding clause (i), the provisos of the second succeeding sentence, and of Section 6 to the extent required by the next succeeding paragraph, and (y) the “Maximum Incremental Facilities Amount” at the time of incurrence (together with calculations thereof in reasonable detail), and (v) on a Pro Forma Basis, after giving effect to the incurrence of such Incremental Term Loans and application of proceeds thereof, (A)(1) in the case of Incremental Term Loans secured on an equal and ratable basis with the Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 1.75:1.00, (2) in the case of Incremental Term Loans secured on a junior basis to the Obligations, the Secured Net Leverage Ratio for the Calculation Period most recently ended does not exceed 1.75:1.00, or (3) in the case of Incremental Term Loans that are unsecured or that are Subordinated Indebtedness, the Total Net Leverage Ratio for the Calculation Period most recently ended is not less than 1.75:1.00, and (B) the Borrower shall be in compliance with the financial covenants set forth in Sections 9.10 and 9.11 as of the most recent Calculation Period. Notwithstanding anything to the contrary herein, in no event shall the aggregate amount of the Incremental Term Loans incurred at any time exceed the Maximum Incremental Facilities Amount as of such time. The Incremental Term Loans made thereunder); and
shall be, except as provided in immediately succeeding clause (viiii) below, secured by the Security Documents, and guaranteed under the Guaranty, on an equal and ratable basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Term Loans (in each case, including with respect to any mandatory and voluntary prepayments); provided, however, that (i) the interest rate applicable to a Class of Incremental Amendment made on or prior Term Loans may differ from that applicable to the date that is eighteen (18) months after the Closing DateInitial Term Loans or any other Class of Incremental Term Loans, provided, however, if the all-in-yield “effective yield” applicable to a given Class of Incremental Term Loans that is secured on an equal and ratable basis with the Obligations (whether in the form which, for such purposes only, shall be deemed to take account of any then applicable interest rate marginsmargin, original issue discountinterest rate benchmark floors, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Class of original issue discount), Incremental Term Loans but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Class of Incremental LoanTerm Loans) determined as of the initial funding date for such Class of Incremental Term Loans exceeds the “effective yield” of any Initial Term Loans or any other Class of Incremental Term Loans (unless the terms of such Class provide that such Class is not subject to this provision) (determined on the same basis as provided above, which shall not with the comparative determination to be included and equated to made in the interest ratereasonable judgment of the Administrative Agent (as determined by the Administrative Agent in consultation with the Required Lenders) consistent with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), generally accepted financial practice) by more than 50 basis points 0.50% (the amount of such excess above 50 basis points over 0.50% being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans or such other Class of Incremental Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential (including, as provided in the following proviso, the “floor” for any applicable Term Loans effective upon the making of the applicable Incremental Yield DifferentialTerm Loans; provided that, in determining the interest rate margins applicable to the Incremental Term Loans and the Initial Term Loans or such other Class of Incremental Term Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any other Class of Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) if the Incremental Term Loans include an interest-rate floor a “floor” greater than the interest rate floor “floor” applicable to the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans, the differential between (I) such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin under the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be required, but only required and (II) to the extent an increase in the interest rate floor applicable to “floor” in the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor then in effect thereunder, the “floor” (but not the Applicable Margininterest rate margin) applicable to the Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be increased by such increased amount (this clause (i), the “MFN Provision”), (ii) a given Class of Incremental Term Loans may rank junior in right of security with other Term Loans or be unsecured, in which case such Incremental Term Loans will be extended pursuant to a separate credit agreement and the provisions of immediately preceding clause (i) shall not apply; (iii) the final stated maturity date for a given Class of Incremental Term Loans may be on or later (but not sooner) than, the Initial Maturity Date, (iv) the amortization requirements for a given Class of Incremental Term Loans may differ, so long as the Weighted Average Life to Maturity of such Incremental Term Loans is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Loans (except to the extent of such differential between interest rate floors.
(b) Except nominal amortization for periods where amortization has been eliminated as set forth in Section 2.19(aa result of prepayment of the applicable Loans), (v) if such Incremental Term Loans are secured, they shall not be secured by any assets other than the Collateral, (vi) if such Incremental Term Loans are guaranteed, they shall not be guaranteed by any Person other than the Guarantors, (vii) except as otherwise required or as permitted in clauses (i) through (vi) above, the other terms of a given Class of Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or Additional Lenders providing such Incremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of the Term Loans; provided that such terms may differ if reasonably satisfactory to the Administrative Agent and the Required Lenders; provided, further, that any such terms that are not substantially consistent with the then-existing Loans shall be no more favorable (taken as a whole) to the relevant Lenders under such Incremental Term Loans than those applicable to the then-existing Loans (taken as a whole) and (viii) the proceeds of Incremental Term Loans may be utilized by Holdings, the Borrower or any of their respective Subsidiaries as may be agreed by the Borrower and the Lenders providing the Incremental Term Loans, to the extent not otherwise prohibited by this Agreement. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated substantially as the same Class as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share any of such prepayments) and GuaranteesTerm Loans. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender (or any Additional existing Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAffiliate) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentother financial institution being called an “Additional Lender”); provided that the Administrative Agent and the Required Lenders shall have consented to such Additional Lender (such consent not to be unreasonably withheld, conditioned withheld or delayed) and such Additional Lender shall not be an Affiliated Lender (other than Affiliated Sponsor Lenders in accordance with the requirements of, and subject to the limitations contained in, Sections 2.16(a)(vii) and (d)). Each Non-Defaulting Lender shall be afforded a right of first offer with respect to such Lender’s making pro rata portion of such Incremental Term Loans if on the terms and subject to the conditions offered by the Borrower to any other prospective lenders; provided that any existing Non-Defaulting Lender that does not deliver to the Borrower a written commitment to provide its pro rata share of such consent would Incremental Term Loans on such terms and subject to such conditions within ten (10) Business Days after receipt by such Non-Defaulting Lender of written notice thereof may be required under Section 10.6(b) for an assignment deemed by the Borrower, in its sole discretion, to have declined to provide its pro rata share of such Incremental Term Loans (in which case, the Borrower shall be deemed to have complied with its obligation to afford a right of first offer to such Non-Defaulting Lender and may offer the opportunity to provide such Incremental Term Loans to such Lender or Additional any other Person (including any other existing Lender)). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, to the extent reasonably requested by the Administrative Agent or Required Lenders, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents (including, without limitation, any Mortgage modifications and related date-down endorsements to the Mortgage Policies) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent Agent, the Required Lenders and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.15. The effectiveness occurrence of the effective date of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on such date of each of the condition conditions set forth in clause Section 6 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 6 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except obligated to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement provide any Incremental AmendmentTerm Loans, unless it so agrees.
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “New Term Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (the commitments thereofa “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments,”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” the loans thereunderand, together with any New Term Commitments, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Commitments”); provided that (i) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or the First Amendment Transactions, no Specified Default) shall exist and (ii) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Specified Representations shall be true and correct in all material respects. Each tranche of New Term Loans or New Revolving Commitments shall be in an aggregate principal amount that is not less than C$15,000,000 or US$15,000,000, as applicable (provided that such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(b) The terms and provisions of New Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Commitments; provided, that:
(i) after giving effect to any such New Commitments shall (x) rank pari passu in right of payment and security with the Initial Term Loans made on the Closing Date, the 2018 Incremental Term Loans, the aggregate amount of Incremental 2020 Refinancing Term Loans, the 2023 Refinancing Term Loans and, the 2023-A Refinancing Term Loans and the 2024 Refinancing Term Loans, (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) (A) New Term Loans shall not exceed an amount (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) New Term Loans shall (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for any Class of Term Loans outstanding as of the applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date (or, with respect to the 2023 Refinancing Term Loans, the six-month anniversary of the Fourth Amendment Effective Date) pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of such same currency shall be increased to the extent necessary so that the All-In Yield of such Initial Term Loans, 2018 Incremental Term Loans or 2023 Refinancing Term Loans, as applicable, is equal to the sum All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, due to the application or imposition of a Term SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Term SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, (y) through an increase in the Applicable Rate for such Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, or (z) any combination of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below)above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, plus less than pro rata basis or greater than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (y) $175,000,000 (less, but not greater than a pro rata basis except in the case of this clause a prepayment of such New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(yvii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be deemed to be reasonably satisfactory to the Administrative Agent), and (2) pricing, fees, rate floors, premiums, optional payment and redemption terms (subject to the preceding clauses (i) through (viii)), the aggregate principal amount terms and conditions applicable to such New Revolving Commitments, New Term Commitments and New Term Loans may be different from those of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided thatthe Term Loans, for the avoidance of doubt, the amount available to the extent (x) such differences are agreed upon by the Borrower pursuant and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as applicable, and are reasonably acceptable to this clause the Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be available at all times identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans being increased, as existing on the respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Commitments shall not be subject to include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the ratio test described in foregoing clause benefit of the Term Commitments (xand any Term Loans made pursuant thereto); provided, further, that the Borrower terms of any New Revolving Commitment may incur such Indebtedness under any clause (x) include a financial maintenance covenant or (y) above in such order related equity cure so long as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans Administrative Agent shall have a Weighted Average Life been given prompt written notice thereof and this Agreement is amended to Maturity no shorter than include such financial maintenance covenant or related equity cure for the Weighted Average Life to Maturity benefit of the Loans;
each Facility (v) subject to clauses (iii) and (iv) aboveprovided, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orfurther, in connection with a Limited Condition Transactionhowever, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the interest rate floor benefit of such New Revolving Commitment or covenant only applicable to to, or for the Loansbenefit of, the differential between such interest rate floors New Revolving Commitment, such financial maintenance covenant shall be equated to automatically included in this Agreement only for the interest rate margins benefit of each New Revolving Commitment hereunder (and not for purposes the benefit of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floorsany other Facility hereunder)).
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans or New Revolving Commitments may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender including the Administrative Agent in its capacity as an existing Lender) shall be obligated have any obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental New Term Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Dateor New Revolving Commitments) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or New Revolving Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such New Term Loans or New Revolving Commitments is an assignment of such New Term Loans or New Revolving Commitments to such Person. Commitments in respect of Incremental New Term Loans or New Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including2.14 and, subject in the case of any Incremental Amendment with respect to clause (b) New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of this Section 2.19, amendments the type being provided pursuant to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyNew Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental New Term Loans or New Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any New Term Loans or New Revolving Commitments unless it so agrees.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[reserved].
(e) Notwithstanding anything to the contrary herein, Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement. This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or 10.1 Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
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Incremental Credit Extensions. (a)
(i) The Borrower may, at At any time or and from time to time after the Closing First Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of the Revolving Commitments hereunder) (“Incremental Revolving Facilities”) from Additional Revolving Lenders; provided that (A) at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, no Default shall have occurred and be continuing or shall result therefrom (or, in the case of the incurrence or provision of any Incremental Revolving Facility in connection with a Limited Condition Acquisition, no Specified Event of Default shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (A) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for 115
(ii) At any time and from time to time after the First Amendment Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available such notice to each of the Lenders), request to effect one or more additional tranches of term loans hereunder or increases (so long as the interest rate margins, rate floors, fees, funding discounts and other terms of any such increase are identical to the Term Loans being increased) in the amount of Term Loans (the commitments thereof, the “Incremental Commitments,Term Facilities” the loans thereunderand, the “together with any Incremental Loans,” and a Lender making such loansRevolving Facility, an “Incremental LenderFacility”)) from one or more Additional Term Lenders; provided that:
that (iA) after giving effect to any at the time of each such request and upon the effectiveness of each Incremental LoansTerm Facility Amendment, the aggregate amount of Incremental Loans no Default shall not exceed an amount equal to the sum of have occurred and be continuing or shall result therefrom (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessor, in the case of this the incurrence or provision of any Incremental Term Facility in connection with a 116 Limited Condition Acquisition, no Specified Event of Default shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (yA) above and setting forth the applicable clause(s) of the definition of Incremental Cap utilized for such Incremental Term Facility, together with, to the extent utilizing clause (b) of the definition of Incremental Cap, reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), the aggregate principal amount respectively, be accompanied by a reasonably detailed calculation of Indebtedness incurred under Section 6.1(b)(vi)(y) Consolidated EBITDA or Section 6.1(b)(ii)(y)); provided thatConsolidated Interest Expense, as applicable, for the avoidance relevant period), (C) the maturity date of doubt, the amount available to the Borrower any Incremental Term Loans incurred pursuant to this clause (y) shall be available at all times and any Incremental Term Facility shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Term Maturity Date;
(iv) the Date and such Incremental Loans Term Facility shall not have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans;
); provided, that that this clause (vC) shall not apply to any Incremental Term Facilities incurred in the form of Customary Bridge Loans (provided that any loans, notes securities or other debt which are exchanged for or otherwise replace such Customary Bridge Loans, if any, shall be subject to clauses the requirements of this clause (iiiC)) and and/or in an aggregate principal amount outstanding that is not in excess of the then remaining capacity under the Inside Maturity Basket, (ivD) above, the interest rates and the amortization schedule applicable All-In Yield for any term loans incurred pursuant to any such Incremental Loans Term Facility shall be determined by the Borrower and the applicable Incremental Additional Term Lenders;
(vi) no Default or Event of Default (or, ; provided that in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made event that on or prior to the date that this is eighteen (18) six months after the Closing DateFirst Amendment Effective Date in the case of floating rate term loans (other than Customary Bridge Loans (provided that any loans, notes securities or other debt which are exchanged for or otherwise replace such Customary Bridge Loans, if any, shall be subject to the requirements of this clause (D))) that are (w) secured by Liens on the Collateral on a pari passu basis with the Term B-2 Loans, (x) denominated in dollars and (y) broadly syndicated to banks and other institutional investors, if the allAll-inIn Yield for such term loans is greater than the All-yield (whether in In Yield for the form of interest rate marginsTerm B-2 Loans by more than 50 basis points, original issue discount, upfront fees or interest rate floors (subject then the All-In Yield for the Term B-2 Loans shall be increased to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase extent necessary so that the All-In Yield is equal to the Applicable Margin under All-In Yield for such term loans incurred pursuant to such Incremental Term Facility minus 50 basis points; provided, further, that, in determining the Facility) with respect All-In Yield applicable to the term loans incurred pursuant to such Incremental Loans made thereunder (as determined by the Borrower Term Facility and the applicable Incremental LendersTerm B-2 Loans (x) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof“OID”) and or upfront fees (which shall be deemed to constitute like amount amounts of original issue discountOID) payable by Borrower to the Term Lenders or any Additional Term Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), but excluding any arrangement, structuring (y) customary arrangement or other commitment fees payable to the Lead Arrangers (or their respective affiliates) in connection therewith that are not shared with all Lenders providing such this Agreement or to one or more arrangers (or their affiliates) of any Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans Term Facility shall be taken into account), by more than 50 basis points excluded and (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, z) if the Incremental Loans include Term Facility includes an interest-interest rate floor greater than the interest rate floor applicable to the Term B-2 Loans, the such differential between such in interest rate floors shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin for the Term B-2 Loans shall be required, but only to the extent an increase in the interest rate floor applicable to in the Term B-2 Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor 117
(but not the Applicable Marginiii) applicable Notwithstanding anything to the Loans shall contrary herein, no Incremental Facility may be increased established or incurred under this Section 2.18 in an amount that would exceed the Incremental Cap at the time of such establishment or incurrence. Notwithstanding anything herein to the extent of such differential between interest rate floorscontrary, no existing Lender will be required to participate in any Incremental Revolving Facility or Incremental Term Facility without its consent.
(bi) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental LoansRevolving Facility or Incremental Term Facility.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of any Incremental Loans Revolving Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each the applicable Additional Lender, if any, Revolving Lenders and the Administrative Agent. The Incremental 118
(iii) Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, the applicable Additional Term Lenders and the Administrative Agent. Incremental Term Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term Facility or, unless it agrees, be obligated to provide any Incremental Term Facilities) or by any Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section. Subject to Section including1.08 in the case of an Incremental Term Facility incurred to finance a Limited Condition Acquisition, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Term Facility Amendment shall be (shall, unless waived or not required otherwise agreed to by the Incremental Lenders in connection with a Limited Condition Transaction) Administrative Agent and the Additional Term Lenders, be subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” (or other similar reference) in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such legal opinions 119
(i) Upon each increase in the Revolving Commitments pursuant to this Section, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of such increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender's participations hereunder in outstanding Letters of Credit such that, after giving effect to such increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender's Applicable Percentage. The Borrower will use If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall, upon the effectiveness of the applicable Incremental Revolving Facility, be prepaid from the proceeds of Revolving Loans made under such Incremental Revolving Facility so that Revolving Loans are thereafter held by the Incremental Revolving Lenders according to their Applicable Percentage (after giving effect to the increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans for being prepaid and any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made costs incurred by any Loan Party Revolving Lender in or pursuant to the Loan Documents (or, in connection accordance with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.Section
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Incremental Credit Extensions. (a%3) The Borrower may, at (%4) At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of the Revolving Commitments hereunder) (“Incremental Revolving Facilities”) from Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (%5) no Default shall have occurred and be continuing or shall result therefrom, (%5) the Borrower shall be in compliance on a Pro Forma Basis with the Financial Performance Covenants recomputed as of the last day of the most-recently ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (%5) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the relevant period), (%5) such Incremental Revolving Facility may be secured on a pari passu basis with the Loans, (%5) the interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental Revolving Facility shall be determined by the Borrower and the lenders thereunder, provided that no Incremental Revolving Facility shall mature prior to the Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (%5) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Revolving Facilities, (G) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the Additional Revolving Lenders and (H) in the case of an increase in the Revolving Commitments hereunder, the maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (E) or (G) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that no Issuing Bank shall be required to act as “issuing bank” under any such Incremental Revolving Facility without its written consent. Each Incremental Revolving Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the Incremental Cap.
(i) At any time and from time to time after the Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available such notice to each of the Lenders), request to effect one or more additional tranches of Loans term loans hereunder or (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio proviso to subclause (ii)(E) below does not apply) increases in the amount of Term B-12 Loans (“Incremental Term Facilities”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) no Default shall have occurred and be continuing or shall result therefrom, (B) the Borrower shall be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) Financial Performance Covenants recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available, (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the case may berelevant period), have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect D) the maturity date of any term loans incurred pursuant to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and Incremental Term Facility shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Term Maturity Date;
(iv) the Date and such Incremental Loans Term Facility shall not have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans;
, (vE) the interest rate margins, rate floors, fees, premiums, funding discounts and, subject to clauses clause (iii) and (iv) aboveD), the interest rates maturity and the amortization schedule applicable for any term loans incurred pursuant to any such Incremental Loans Term Facility shall be determined by the Borrower and the applicable Incremental Additional Term Lenders;
(vi) no Default or Event of Default (or, ; provided that in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect event that the interest rate margins for any term loans incurred pursuant to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to Term Facility are higher than the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including for the Term B-12 Loans by more than 50 basis points, then the interest rate floors (subject margins for the Term B-12 Loans shall be increased to the first proviso extent necessary so that such interest rate margins are equal to the interest rate margins for such term loans incurred pursuant to such Incremental Term Facility minus 50 basis points; provided, further that, in this clause determining the interest rate margins applicable to the term loans incurred pursuant to such Incremental Term Facility and the Term B-12 Loans (vii))), x) original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof“OID”) and or upfront fees (which shall be deemed to constitute like amount amounts of original issue discountOID) payable by Borrower to the Term Lenders or any Additional Term Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), but excluding any arrangement, structuring (y) customary arrangement or other commitment fees payable to the Lead Arranger (or its affiliates) in connection therewith that are not shared with all Lenders providing such this Agreement or to one or more arrangers (or their affiliates) of any Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans Term Facility shall be taken into account), by more than 50 basis points excluded and (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, z) if the Incremental Loans include Term Facility includes an interest-interest rate floor greater than the interest rate floor applicable to the Term B-12 Loans, the differential between such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin for the Term B-12 Loans shall be required, but only to the extent an increase in the interest rate floor applicable to in the Term B-12 Loans would cause an increase in the Applicable Margin applicable to such Loansinterest rate then in effect, and in such case the interest rate floor (but not the Applicable Margininterest rate margin) applicable to the Term B-12 Loans shall be increased to by such increased amount, (F) the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent term loans incurred pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive Term Facility may be secured by Liens on the Group Members, taken as Collateral on a whole, than those pari passu or junior basis with respect to the Liens on the Collateral securing the other Loans and Commitments hereunder (but excluding provided that to the extent such term loans are secured by junior Liens the applicable parties shall have entered into a Junior Lien Intercreditor Agreement), (G) any Incremental Term Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Term Lenders providing the applicable after Incremental Term Facilities and (H) any Incremental Term Facility may be provided in any currency as mutually agreed among the Maturity DateAdministrative Agent, the Borrower and the Additional Term Lenders; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clauses (D), (E), (F) or (iiH) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof; provided that the Administrative Agent shall have consented (such consent not to amount may be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans less than $25,000,000 if such consent would amount represents all the remaining availability under the Incremental Cap.
(ii) Notwithstanding anything to the contrary herein, the sum of (i) the aggregate amount of commitments in respect of the Incremental Revolving Facilities effected after the Restatement Effective Date, (ii) the aggregate principal amount of all Incremental Term Facilities incurred after the Restatement Effective Date, (iii) the aggregate principal amount of all secured Indebtedness incurred after the Restatement Effective Date pursuant to Section 6.01(a)(viii) and (iv) the aggregate principal amount of all Additional Notes issued after the Restatement Effective Date pursuant to Section 6.01(a)(xxii) shall not exceed $200,000,000 (the maximum amount referred to in this clause (iii), the “Incremental Cap”). Notwithstanding anything herein to the contrary, no existing Lender will be required under to participate in any Incremental Revolving Facility or Incremental Term Facility without its consent. For the avoidance of doubt, the assumption of the Escrow Term Loans on the Escrow Assumption Date shall not be deemed an incurrence of Incremental Revolving Facilities or Incremental Term Facilities pursuant to this Section 10.6(b2.18.
(b) for an assignment (%4) Each notice from the Borrower pursuant to this Section shall set forth the requested amount of Loans to such Lender the relevant Incremental Revolving Facility or Additional Lender. Incremental Term Facility.
(i) Commitments in respect of any Incremental Loans Revolving Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each the applicable Additional Lender, if any, Revolving Lenders and the Administrative Agent. The Incremental Revolving Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to participate in any Incremental Revolving Facility) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section including, subject (including to clause (b) provide for the issuance of this Section 2.19, amendments letters of credit and swingline loans thereunder and to Sections 2.3(a) and 2.5(b) that do not adversely affect provide for the Lenders affected therebytreatment of defaulting lenders). The effectiveness of any Incremental Revolving Facility Amendment shall be (shall, unless waived or not required otherwise agreed to by the Incremental Lenders in connection with a Limited Condition Transaction) Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Revolving Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” (or other similar reference) in Section 4.02 shall be deemed to refer to the Incremental Revolving Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Restatement Effective Date under Section 4.01 (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).
(ii) Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, the applicable Additional Term Lenders and the Administrative Agent. Incremental Term Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term Facility or, unless it agrees, be obligated to provide any Incremental Term Facilities) or by any Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The Borrower effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” (or other similar reference) in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Restatement Effective Date under Section 4.01 (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).
(i) Upon each increase in the Revolving Commitments pursuant to this Section, each Revolving Lender immediately prior to such increase will use automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of such increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender's participations hereunder in outstanding Letters of Credit such that, after giving effect to such increase and each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender's Applicable Percentage. If, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall, upon the effectiveness of the applicable Incremental Revolving Facility, be prepaid from the proceeds of Revolving Loans made under such Incremental Revolving Facility so that Revolving Loans are thereafter held by the Incremental Revolving Lenders according to their Applicable Percentage (after giving effect to the increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans for being prepaid and any purpose costs incurred by any Revolving Lender in accordance with Section 2.13. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing, pro rata payment requirements and notice requirements contained elsewhere in this Agreement shall not prohibited by this Agreementapply to the transactions effected pursuant to the immediately preceding sentence.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, Upon each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Term Facility Closing Date as if made on and as of such datepursuant to this Section, except to each Additional Term Lender participating in the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties applicable Incremental Term Facility shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.make an
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Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of term loans (the “New Term Loans”), which may be of the same facility as any existing Term Loans (the commitments thereofa “Term Loan Increase”) or a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments”) or (ii) (A) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, a “Revolving Commitment Increase”) and/or (B) the establishment of one or more new revolving credit commitments (each such new commitment, a “New Revolving Commitment Tranche,” the loans thereundercollectively with any Revolving Commitment Increase, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Revolving Credit Commitments”); provided that both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Credit Commitments therefor), no Event of Default shall exist and all Specified Representations (conformed as reasonably necessary for such Investment or Permitted Acquisition to reflect at the option of the Borrower customary “SunGard” representations) shall be true and correct in all material respects (provided that, any such Specified Representation that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects); provided that, notwithstanding the above, with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a permitted Investment or Permitted Acquisition, for purposes of funding any such Loans, this condition may be waived in full or in part (subject to compliance with Section 10.01(i) hereof) by Lenders holding more than 50% of the applicable aggregate Commitments in respect of Loans to be incurred pursuant to such Incremental Amendment (other than with respect to any (I) Event of Default under Section 8.01(a) or 8.01(f) and (II) Specified Representations (conformed as reasonably necessary for such Investment or Permitted Acquisition to reflect at the option of the Borrower customary “SunGard” representations) which may only be waived with the consent of the Required Lenders). Each tranche of New Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence) and each New Revolving Credit Commitments shall be in an aggregate principal amount that is not less than a Dollar Amount of $5,000,000 (provided that such amount may be less than a Dollar Amount of $5,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the New Term Loans, when added to the aggregate amount of New Revolving Credit Commitments and any Incremental Equivalent Debt incurred prior to or substantially simultaneously with the incurrence of such New Term Loans and/or New Revolving Credit Commitments, as applicable, shall not exceed the Available Incremental Amount.
(b) The terms and provisions of New Term Commitments or New Revolving Credit Commitments, as the case may be (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Term Commitments or New Revolving Credit Commitment; provided, that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans New Term Commitments and New Revolving Credit Commitments shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans (if any) and the Initial Term Loans made on the Closing Date and (y) may not be (I) secured by any assets other Loans and Commitments hereunder;than Collateral or (II) guaranteed by any Person other than a Guarantor,
(iiiii) the Incremental except with respect to customary bridge loans, New Term Loans shall not mature earlier than the Original Term Loan Maturity Date;Date (prior to any extension thereto),
(iviii) the Incremental except with respect to customary bridge loans, New Term Loans shall have a Weighted Average Life to Maturity of no shorter less than the Weighted Average Life to Maturity of as then in effect for the Loans;Initial Term Loans (prior to any extension thereto),
(viv) (x) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (iiiii) and (iviii) above, the interest rates and the amortization schedule applicable to any such Incremental New Term Loans shall be determined by the Borrower and the Lenders thereunder, and (y) the currency, discounts, premiums, fees and optional prepayment and redemptions terms applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as New Revolving Credit Commitments shall be determined by the Borrower and the applicable Incremental LendersLenders thereunder,
(v) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject including margin and floors) applicable to any New Term Loans or New Revolving Credit Commitments will be determined by the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, Borrower and the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase New Term Loans or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialNew Revolving Credit Commitments; provided that, if the Incremental Loans include an interestAll-rate floor greater than the interest rate floor In Yield applicable to such New Term Loans exceeds the LoansAll-In Yield of the Initial Term Loans made on the Closing Date at such time by more than 50 basis points, the differential between such interest rate floors shall be equated to then the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield of the Initial Term Loans is equal to the All-In Yield of such differential between New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan due to the application or imposition of a Eurocurrency Rate or Base Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency Rate or Base Rate floor applicable to such Initial Term Loan, (y) through an increase in the Applicable Rate for such Initial Term Loan or (z) any combination of (x) and (y) above, and in each case, solely to the extent that the application or imposition of such floor would cause an increase in the interest rate then in effect under the Initial Term Loans,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) the Maturity Date of any Class of New Revolving Credit Commitments shall be no earlier than the maturity of any existing Revolving Credit Commitments and will require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of any then existing Revolving Credit Commitments,
(viii) with respect to any New Revolving Credit Commitments, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of any Revolving Credit Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to New Revolving Credit Commitments after the associated Incremental Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the provisions of Section 2.06(d) to the extent dealing with Letters of Credit which mature or expire after a Maturity Date when there exist Revolving Credit Commitments with a longer Maturity Date, all Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments (and except as provided in Section 2.06(d), without giving effect to changes thereto on an earlier Maturity Date with respect to Letters of Credit theretofore issued) and (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Incremental Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted, in its sole discretion, to permanently repay and terminate commitments of any such Class on better than a pro rata basis (x) as compared to any other Class with a later Maturity Date than such Class and (y) as compared to any other Class in connection with the refinancing thereof with Refinancing Revolving Credit Commitments,
(ix) except as set forth above, the material terms of any such New Term Commitments or New Revolving Credit Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the New Lenders than those applicable to the Term Loans or Revolving Credit Commitments, as applicable, (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans or Revolving Credit Commitments, as applicable and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms); provided that (A) except as provided in preceding clauses (i) through (viii), the terms and conditions applicable to such New Term Commitments, New Term Loans and New Revolving Credit Commitments shall be either substantially similar to, and not more favorable to the lenders thereunder than the Term Loans or the Revolving Credit Loans, as applicable, or, if more favorable, may be materially different from those of the Term Loans or Revolving Credit Commitments, as applicable, to the extent such differences are reasonably acceptable to the Administrative Agent (it being understood that (x) terms applicable only after the Latest Maturity Date of the existing Term Loans and (y) the modification of the terms of the then-existing Term Loans to receive the benefit of such more favorable terms, in each case, are acceptable in any event) and (B) in the case of a Term Loan Increase or a Revolving Commitment Increase, the terms, provisions and documentation of such Term Loan Increase or a Revolving Commitment Increase shall be identical (other than with respect to upfront fees and OID and underwriting, commitment, amendment, arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans or Revolving Credit Commitments being increased, in each case, as existing on the Incremental Facility Closing Date.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Credit Commitments and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans may be made made, and New Revolving Credit Commitments may be provided, by any existing Lender or any Additional Lender (provided that no but each existing Term Lender shall be obligated not have an obligation to make a portion of any Incremental New Term Loan) , and each existing Revolving Credit Lender shall not have an obligation to provide a portion of any New Revolving Credit Commitments, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date2.14) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or providing such New Revolving Credit Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental New Term Loans and New Revolving Credit Commitments shall become Commitments (or in the case of a New Revolving Credit Commitments to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans or New Revolving Credit Commitments, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”)) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and (b) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Term Commitment or New Revolving Credit Commitments (as applicable) are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental Loans New Term Loans, New Revolving Credit Commitments and Letters of Credit issued pursuant to any New Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any New Term Loans or New Revolving Credit Commitments unless it so agrees.
(d) Each of the representations and warranties made by Upon any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as which New Revolving Credit Commitments are effected through the establishment of a new Class of revolving credit commitments pursuant to this Section 2.14, (i) if, on such date, except there are any revolving loans under any Revolving Credit Facility then outstanding, such revolving loans shall be prepaid from the proceeds of a new Borrowing of the New Revolving Credit Loans under such new Class of New Revolving Credit Commitments in such amounts as shall be necessary in order that, after giving effect to such Borrowing and all such related prepayments, all revolving credit loans under all Revolving Credit Facilities will be held by all Lenders under the Revolving Credit Facilities (including New Revolving Credit Lenders) ratably in accordance with their revolving credit commitments under all Revolving Credit Facilities (after giving effect to the extent establishment of such representations and warranties expressly relate to an earlier dateNew Revolving Credit Commitments), (ii) in which the case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materialityof a Revolving Credit Commitment, in which case such representation and warranty there shall be accurate an automatic adjustment to the participations hereunder in Letters of Credit held by each Lender under the Revolving Credit Facilities so that each such Lender shares ratably in such participations in accordance with their revolving credit commitments under all respects) as Revolving Credit Commitments (after giving effect to the establishment of such earlier date.
New Revolving Credit Commitments), (eiii) Notwithstanding anything each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (iv) each New Revolving Credit Lender shall become a Lender with respect to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.New Revolving Credit Com
Appears in 1 contract
Sources: Credit Agreement (Casa Systems Inc)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments,Term Loans”) or (b) one or more increases in the amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase” the loans thereunderand, the together with any Incremental Term Loans, referred to herein as a “Incremental Loans,” and a Lender making such loans, an “Incremental LenderCredit Increase”); provided that:
that (i) upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist or would exist after giving effect thereto and (ii) as of the Incremental Facility Closing Date, the Borrower shall be in compliance with the provisions of Section 7.1, calculated on a pro forma basis after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal Credit Increase to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining be made on the balance sheet of such Incremental Loans) Facility Closing Date, as of the end of the most recently completed recent period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does pursuant to Section 6.1(a) or (b) or, if prior to the first delivery date for such financial statements hereunder, as of the end of the period for which the most recent financial statements of the Company are available and if the last day of any such period is prior to the first test date under Section 7.1, the levels for the first test date under Section 7.1 shall be deemed to apply for this purpose. Each Credit Increase shall be in an aggregate principal amount that is not exceed 3.00 to 1.00 less than $15,000,000 (without giving effect to any contemporaneous borrowing provided that such amount may be a lesser amount if such amount represents all remaining availability under clause (y) below), plus (y) $175,000,000 (less, the limit set forth in the case of this clause (ynext sentence and there shall be no more than four such increases). Notwithstanding anything to the contrary herein, the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and Credit Increases shall not be subject to the ratio test described in foregoing clause exceed $75,000,000. The Incremental Term Loans (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xA) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
applicable Facilities, (iiiB) the Incremental Loans shall not mature earlier than the Tranche B Maturity Date;
(iv) the Incremental Loans Date and shall have a Weighted Average Life weighted average life to Maturity no shorter than the Weighted Average Life maturity (pursuant to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the such amortization schedule applicable to any such Incremental Loans shall schedules as may be determined by the Borrower and the applicable Incremental Lenders;
(vilenders thereof) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after no shorter than the Closing Date, if then-remaining weighted average life to maturity of the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Tranche B Term Loans made thereunder (as the aggregate amount thereof may have been reduced and as the scheduled amortization thereof may have been modified as of such date) and (C) will accrue interest at rates determined by the Borrower and the lenders providing such Incremental Term Loans, which rates may be higher or lower than the rates applicable to the Tranche B Term Loans, provided that if the initial yield on such Incremental LendersTerm Loans (as determined by the Administrative Agent to be equal to the sum of (1) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors margins on such Incremental Term Loans and (subject to 2) if such Incremental Term Loans are initially made at a discount or the first proviso Lenders making the same in this clause syndication thereof receive a fee (vii))), original issue in the form of discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount)or otherwise, but excluding any arrangementunderwriting or arrangement fee paid for the account of an underwriter or arranger and also, structuring for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to similar transaction) directly or indirectly from the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing trancheParent, the original issue discount applicable to Borrower, any Subsidiary or Affiliate of the refinanced loans shall be taken into account), by more than 50 basis points foregoing for doing so (the amount of such excess above 50 basis points discount or fee, expressed as a percentage of the Incremental Term Loans, being referred to herein as “Incremental OID,” with the amount of such Incremental OID being quantified by dividing it by an assumed four year life to maturity) exceeds (such excess, the “Incremental Yield Differential”) the sum of (x) the interest margin for Initial Tranche B Term Loans as of the Closing Date and (y) if the Initial Tranche B Term Lenders in syndication thereof received upfront or similar fees (in the form of discount or otherwise, but excluding any underwriting or arrangement fee paid for the account of an underwriter or arranger and also, for the avoidance of doubt, excluding any financial advisory fee paid in respect of services rendered in respect of any merger, acquisition or similar transaction) directly or indirectly from the Parent, the Borrower, any Subsidiary or any Affiliate of the foregoing for making the Initial Tranche B Term Loans (the amount of such fees, expressed as a percentage of the sum of the original aggregate amount of the Initial Tranche B Term Commitments, being referred to herein as “Initial OID”), then, upon with the effectiveness amount of such Incremental AmendmentInitial OID being quantified by dividing it by an assumed four year life to maturity, then the Applicable Margin then in effect for any outstanding Tranche B Term Loans shall automatically be increased by the Incremental Yield Differential, effective upon the making of the Incremental Term Loans; provided thatthat except as provided in preceding clauses (B) or (C), if the Incremental Loans include an interest-rate floor greater than the interest rate floor terms and conditions applicable to Incremental Term Loans may be materially different from those of the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only Tranche B Term Loans to the extent an increase in the interest rate floor applicable such differences are reasonably acceptable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans Administrative Agent. The Revolving Commitment Increases shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially on the same terms as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and GuaranteesRevolving Commitments. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.23 shall set forth the requested amount and proposed terms of the relevant Credit Increases. Incremental Loans.
(c) Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (and each existing Tranche B Term Lender (provided that no Lender shall be obligated will have the right to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, Term Loan and each existing Revolving Lender will have the right to the extent not permitted in this Section 2.19, all terms and documentation with respect to provide a portion of any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent and, in the case of a Revolving Commitment Increase, the Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases, if such consent would be required under Section 10.6(b) 10.6 for an assignment of Tranche B Term Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Credit Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by Parent, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The An Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) 2.23 and the use of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyproceeds of such Credit Increase. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions set forth in the Incremental Amendment. No Lender shall be obligated to provide any Credit Increases, unless it so agrees. Upon each increase in the Revolving Commitments pursuant to this Section 2.23, the participations held by the Revolving Lenders in the L/C Exposure and Swingline Loans immediately prior to such increase will be reallocated so as to be held by the Revolving Lenders ratably in accordance with their respective Revolving Percentages after giving effect to such Revolving Commitment Increase. If, on the date of a Revolving Commitment Increase, there are any Revolving Loans outstanding, the Borrower shall prepay such Revolving Loans in accordance with this Agreement on the date of effectiveness of such Revolving Commitment Increase (but the Borrower may finance such prepayment with a concurrent borrowing of Revolving Loans from the Revolving Lenders in accordance with their Revolving Percentages after giving effect to such Revolving Commitment Increase). The Borrower will may use the proceeds of the Incremental Loans each Credit Increase for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, Agreement unless otherwise agreed in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateCredit Increase.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Credit Agreement (Radiation Therapy Services Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (iA) after giving effect to any such Incremental Loansno Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate amount of Incremental Loans Borrower shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) Financial Performance Covenants recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) belowrelevant period), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.93
Appears in 1 contract
Sources: Credit Agreement
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “New Term Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (the commitments thereofa “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments,”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” the loans thereunderand, together with any New Term Commitments, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Commitments”); provided that (i) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or the First Amendment Transactions, no Specified Default) shall exist and (ii) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Specified Representations shall be true and correct in all material respects. Each tranche of New Term Loans or New Revolving Commitments shall be in an aggregate principal amount that is not less than C$15,000,000 or US$15,000,000, as applicable (provided that such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(b) The terms and provisions of New Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Commitments; provided, that:
(i) after giving effect to such New Commitments shall (x) rank pari passu in right of payment and security with the Initial Term Loans made on the Closing Date and the 2018 Incremental Term Loans and (y) may not be (I) secured by any such Incremental Loans, the aggregate amount of Incremental assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) (A) New Term Loans shall not exceed an amount (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) New Term Loans shall (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for any Class of Term Loans outstanding as of the applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans and the 2018 Incremental Term Loans of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans and the 2018 Incremental Term Loans of such same currency shall be increased to the extent necessary so that the All-In Yield of such Initial Term Loans or 2018 Incremental Term Loans is equal to the sum All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or 2018 Incremental Term Loan due to the application or imposition of a Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or 2018 Incremental Term Loan, (y) through an increase in the Applicable Rate for such Initial Term Loan or 2018 Incremental Term Loan or (z) any combination of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below)above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, plus less than pro rata basis or greater than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (y) $175,000,000 (less, but not greater than a pro rata basis except in the case of this clause a prepayment of such New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(yvii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be deemed to be reasonably satisfactory to the Administrative Agent), and (2) pricing, fees, rate floors, premiums, optional payment and redemption terms (subject to the preceding clauses (i) through (viii)), the aggregate principal amount terms and conditions applicable to such New Revolving Commitments, New Term Commitments and New Term Loans may be different from those of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided thatthe Term Loans, for the avoidance of doubt, the amount available to the extent (x) such differences are agreed upon by the Borrower pursuant and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as applicable, and are reasonably acceptable to this clause the Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be available at all times identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans being increased, as existing on the respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Commitments shall not be subject to include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the ratio test described in foregoing clause benefit of the Term Commitments (xand any Term Loans made pursuant thereto); provided, further, that the Borrower terms of any New Revolving Commitment may incur such Indebtedness under any clause (x) include a financial maintenance covenant or (y) above in such order related equity cure so long as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans Administrative Agent shall have a Weighted Average Life been given prompt written notice thereof and this Agreement is amended to Maturity no shorter than include such financial maintenance covenant or related equity cure for the Weighted Average Life to Maturity benefit of the Loans;
each Facility (v) subject to clauses (iii) and (iv) aboveprovided, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orfurther, in connection with a Limited Condition Transactionhowever, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the interest rate floor benefit of such New Revolving Commitment or covenant only applicable to to, or for the Loansbenefit of, the differential between such interest rate floors New Revolving Commitment, such financial maintenance covenant shall be equated to automatically included in this Agreement only for the interest rate margins benefit of each New Revolving Commitment hereunder (and not for purposes the benefit of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floorsany other Facility hereunder)).
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans or New Revolving Commitments may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender including the Administrative Agent in its capacity as an existing Lender) shall be obligated have any obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental New Term Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Dateor New Revolving Commitments) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or New Revolving Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such New Term Loans or New Revolving Commitments is an assignment of such New Term Loans or New Revolving Commitments to such Person. Commitments in respect of Incremental New Term Loans or New Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including2.14 and, subject in the case of any Incremental Amendment with respect to clause (b) New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of this Section 2.19, amendments the type being provided pursuant to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyNew Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental New Term Loans or New Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any New Term Loans or New Revolving Commitments unless it so agrees.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[reserved].
(e) Notwithstanding anything to the contrary herein, Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement. This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or 10.1 Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Restatement Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (iA) after giving effect to any such Incremental Loansno Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate amount of Incremental Loans Borrower shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) Financial Performance Covenants recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as the case may berespectively, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case be accompanied by a reasonably detailed calculation of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, Consolidated EBITDA and Consolidated Interest Expense for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (xrelevant period); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.,
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, at any time or from From time to time on or after the Closing Date, by notice from subject to the terms and conditions set forth herein, the Borrower may, upon ten (10) Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of Loans term loans (the commitments thereof“Incremental Term Loans”) or one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); , provided that:
that at the time of the effectiveness of each Incremental Facility Amendment (i) no Default or Event of Default has occurred and is continuing or shall result therefrom, (ii) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the covenants set forth in ARTICLE VI as of the last day of the most recently ended Fiscal Quarter after giving effect to any such Incremental Revolving Commitments (assuming for such purpose that such Incremental Revolving Commitments are fully drawn at such time) or Incremental Term Loans, as applicable, (iii) each of the aggregate amount of Incremental Loans conditions set forth in Section 3.2 shall not exceed an amount equal to have been satisfied and (iv) the sum of (x) an unlimited amount at any time so long Administrative Agent shall have received from the Borrower such legal opinions, resolutions, certificates and other documents as the Secured Net Leverage Ratio on a Pro Forma Basis (Administrative Agent may reasonably request. Notwithstanding anything to contrary herein, but without giving effect subject to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (ye) immediately below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for all Incremental Facilities shall not exceed the avoidance sum of doubt, the amount available to the Borrower pursuant to this clause (y) $380,000,000. Each Incremental Facility shall be available at in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $10,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all times and shall not be subject the remaining availability hereunder as set forth above or if the Administrative Agent agrees in writing to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the a lesser minimum amount. Each Incremental Loans Facility shall rank pari passu in right of payment payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of security with the other Loans and Commitments Obligations hereunder;.
(iiib) Except with respect to the Term Loan A-1, any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loan A and (ii) other than amortization, pricing or maturity date, shall have the same terms as the Term Loans or such other terms as are reasonably satisfactory to the Administrative Agent; provided that, except as provided in clause (f) below (A) any Incremental Loans Term Loan shall not mature have a final maturity date earlier than the Term Loan A Maturity Date;
Date and (ivB) the any Incremental Loans Term Loan shall not have a Weighted Average Life to Maturity no that is shorter than the Weighted Average Life to Maturity of the Loans;then-remaining Term Loan A.
(vc) subject Any Incremental Revolving Commitment shall be on the same terms and conditions as, and pursuant to clauses (iii) and (iv) abovethe same documentation as applicable to, the interest rates Revolving Commitments. From and after the amortization schedule applicable making of an Incremental Term Loan or the addition of any Incremental Revolving Commitments pursuant to any this Section, such Incremental Loans shall be determined by the Borrower Term Loan and the applicable such revolving loan funded pursuant to an Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment shall be deemed to constitute like amount of original issue discount)a “Loan”, but excluding any arrangement“Term Loan” and/or “Revolving Loan”, structuring or other fees payable in connection therewith that are not shared with as applicable, hereunder for all Lenders providing such Incremental Loanpurposes hereof, which shall not be included and equated to the interest rate) with respect to the existing Loansand, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including clause (b) immediately above with respect to mandatory Incremental Term Loans, shall be subject to the same terms and voluntary prepayments conditions as each other Term Loan or Revolving Loan made pursuant to this Agreement.
(unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepaymentsd) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans and/or Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those Revolving Commitments. Except with respect to the Loans Term Loan A-1, each Lender shall have the right for a period of ten (but excluding any terms applicable after the Maturity Date10) or (ii) relate days following receipt of such notice, to provisions of a mechanical (including with respect elect by written notice to the Collateral Borrower and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; Agent to provide the requested Incremental Facility by a principal amount equal to its Pro Rata Share of such Incremental Facility. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to provide such Incremental Facility. If any Lender shall elect not to provide such Incremental Facility pursuant to this Section 2.24, the Borrower may designate any other bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), which agrees to provide such Incremental Facility (any such other bank or other financial institution being called an “Additional Lender”) and in the case of any Additional Lender, agrees to become a party to this Agreement, provided that the Issuing Bank (in the case of an increase through an Incremental Revolving Commitment) and the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Commitment if such consent would be required under Section 10.6(b10.4(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Any Additional Lender shall become Commitments a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; provided, that no Incremental Facility Amendment shall be required for the Term Loan A-1 if the Administrative Agent and the Borrower so determine. The No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders and/or any existing Lender who has elected to provide any Incremental Term Loans or increase its Revolving Commitment with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section includingSection. Upon each increase in the Revolving Commitments pursuant to this Section, subject (a) each Lender holding a Revolving Commitment immediately prior to clause such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender holding a Revolving Commitment (including each such Incremental Revolving Lender) will equal its Pro Rata Share and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such increase of the Revolving Commitments be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.19. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. This Section 2.24(d) shall supersede any provisions in Section 2.21(a) and Section 10.2 to the contrary.
(e) If the Term Loan A-1 Commitment provided on the Closing Date is less than $50,000,000, the Borrower shall have the right for a period of 30 days following the Closing Date to obtain an Incremental Term Loan in accordance with this Section 2.192.24, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness principal amount of any such Incremental Amendment Term Loan shall be (unless waived or not required by excluded for purposes of determining the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition limitations set forth in clause (da) below and such other conditions as the parties thereto shall agree of this Section 2.24; provided, that (the effective date of any i) such Incremental AmendmentTerm Loan shall for all purposes be deemed to be the “Term Loan A-1” and shall be subject to the terms, an conditions and provisions herein related to the “Term Loan A-1” and (ii) in no event shall such Incremental Facility Term Loan, together with any portion of the Term Loan A-1 funded on the Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement, if any, exceed $50,000,000.
(df) Each Notwithstanding anything herein to the contrary, no more than $180,000,000 in aggregate principal amount of Incremental Facilities that are incurred on or after the Amendment Effective Date shall have either (i) a final maturity date earlier than the Term Loan A Maturity Date or (ii) a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the representations and warranties made by any then-remaining Term Loan Party in or A. Any Incremental Facilities incurred pursuant to the Loan Documents this clause (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warrantyf) shall be true and correct in all material respects incurred, if at all, (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respectsx) on no more than one occasion and as in no more than one tranche in the aggregate of the Incremental Facility Closing Date as if made Term Loans and (y) on and as of such dateor before August 7, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date2013.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “New Term Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (the commitments thereofa “Term Loan Increase”) or, a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments,”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” the loans thereunderand, together with any New Term Commitments, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Commitments”); provided that (i) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or the First Amendment Transactions, no Specified Default) shall exist and (ii) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or Permitted Acquisition, if the Lenders party to such Incremental Amendment consent, the Specified Representations shall be true and correct in all material respects. Each tranche of New Term Loans or New Revolving Commitments shall be in an aggregate principal amount that is not less than C$15,000,000 or US$15,000,000, as applicable (provided that such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(b) The terms and provisions of New Term Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Term Commitments; provided, that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans New Term Commitments shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Initial Term Loans made on the Closing Date and the 2018 Incremental Term Loans and Commitments hereunder;(y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(iiiii) the Incremental (A) New Term Loans shall not (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) not mature earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date;,
(iviii) the Incremental New Term Loans shall (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a Weighted Average Life to Maturity of no shorter less than the Weighted Average Life to Maturity as then in effect for any Class of Term Loans outstanding as of the Loans;applicable Incremental Facility Closing Date,
(viv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (iiiii) and (iviii) above, the interest rates and the amortization schedule schedule, in each case applicable to any such Incremental New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to any such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date pursuant to clause (a) of the Available Incremental Lenders;Amount exceeds (i) the All-In Yield of the Initial Term Loans and the 2018 Incremental Term Loans of the same currency made on the Closing Date (exclusive of any Initial Term Loans made after the Closing Date) at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans and the 2018 Incremental Term Loans of such same currency (including any Initial Term Loans of such currency made after the Closing Date) shall be increased to the extent necessary so that the All-In Yield of such Initial Term Loans made on the Closing Date (exclusive of any such Initialor 2018 Incremental Term Loans made after the Closing Date) is equal to the All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan or 2018 Incremental Term Loan due to the application or imposition of a Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency Rate, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan or 2018 Incremental Term Loan, (y) through an increase in the Applicable Rate for such Initial Term Loan or 2018 Incremental Term Loan or (z) any combination of (x) and (y) above,
(vi) no Default the New Term Loans may provide for the ability to participate on a pro rata basis, less than pro rata basis or Event greater than pro rata basis in any voluntary repayments or prepayments of Default principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (or, but not greater than a pro rata basis except in connection with the case of a Limited Condition Transaction, no Default or Event prepayment of Default such New Term Loans under Section 8.1(a) or 8.1(f2.05(b)(iii)(B)) shall exist in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); anda greater than pro rata basis,
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date[reserved],the New Revolving Commitments shall contain borrowing, if the all-in-yield (whether in the form letter of interest rate marginscredit issuance, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes repayment and termination of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable Incremental Lenders) exceeds only to periods after the all-in yield (after giving effect to interest rate margins (including Latest Maturity Date of the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees Term Loans (which shall be deemed to constitute like amount of original issue discountbe reasonably satisfactory to the Administrative Agent), but excluding any and (2) pricing, fees, rate floors, premiums, optional payment and redemption terms (subject to the preceding clauses (i) through (viii)), the terms and conditions applicable to such New Revolving Commitments, New Term Commitments and New Term Loans may be different from those of the Term Loans, to the extent (x) such differences are agreed upon by the Borrower and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as applicable, and are reasonably acceptable to the Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be identical (other than with respect to upfront fees and OID and arrangement, structuring or other similar fees payable in connection therewith therewith) to the applicable Term Loans being increased, as existing on the respective Incremental Facility Closing Date; provided, further, that are not shared with all Lenders providing such Incremental Loan, which the terms of any New Term Commitments shall not be included include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the benefit of the Term Commitments (and equated to any Term Loans made pursuant thereto).; provided, further, that the interest rate) with respect to the existing Loans, after giving effect to terms of any increase New Revolving Commitment may include a financial maintenance covenant or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein related equity cure so long as the “Incremental Yield Differential”)Administrative Agent shall have been given prompt written notice thereof and this Agreement is amended to include such financial maintenance covenant or related equity cure for the benefit of each Facility (provided, thenfurther, upon the effectiveness of such Incremental Amendmenthowever, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent benefit of such differential between interest rate floors.New Revolving Commitment or covenant only applicable to, or for the benefit of, such New Revolving
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans or New Revolving Commitments may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender including the Administrative Agent in its capacity as an existing Lender) shall be obligated have any obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental New Term Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Dateor New Revolving Commitments) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or New Revolving Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such New Term Loans or New Revolving Commitments is an assignment of such New Term Loans or New Revolving Commitments to such Person. Commitments in respect of Incremental New Term Loans or New Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including2.14 and, subject in the case of any Incremental Amendment with respect to clause (b) New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of this Section 2.19, amendments the type being provided pursuant to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyNew Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Term Commitment are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental New Term Loans or New Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any New Term Loans or New Revolving Commitments unless it so agrees.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[reserved].
(e) Notwithstanding anything to the contrary herein, Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement. This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or 10.1 Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, at (i) At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of Loans the Revolving Commitments hereunder) (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderRevolving Facilities”)) from Additional Revolving Lenders; provided that:
that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (iA) after giving effect to any such Incremental Loansno Default shall have occurred and be continuing or shall result therefrom, (B) the aggregate amount of Incremental Loans Borrower shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio be in compliance on a Pro Forma Basis (but without giving effect to with the cash proceeds remaining on the balance sheet of such Incremental Loans) covenants contained in Sections 6.12 and 6.13 recomputed as of the most last day of the most-recently completed period of four consecutive fiscal quarters ended Test Period for which financial statements are available (calculated assuming that such Incremental Revolving Facility is fully drawn), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and certificates Compliance Certificate required to be delivered by Section 5.1(a5.01(a) or (b) and Section 5.01(d), as respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA and Consolidated Interest Expense for the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) belowrelevant period), plus (yD) $175,000,000 such Incremental Revolving Facility may be secured on a pari passu basis with the Loans, (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(iiE) the Incremental Loans shall rank pari passu in right of payment interest rate margins, rate floors, fees, premiums and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule maturity applicable to any such Incremental Loans Revolving Facility shall be determined by the Borrower and the applicable lenders thereunder, (F) any Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) Revolving Facility Amendment shall exist be on the Incremental Facility Closing Date with respect terms and pursuant to any Incremental Amendment entered into in connection therewith (and after giving effect documentation to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental LendersRevolving Facilities, (G) exceeds any Incremental Revolving Facility may be provided in any currency as mutually agreed among the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorterAdministrative Agent, the remaining life to maturity thereofBorrower and the Additional Revolving Lenders and (H) and upfront fees (which shall be deemed to constitute like amount in the case of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to Revolving Commitments hereunder, the Loans would cause an maturity date of such increase in the Applicable Margin applicable to Revolving Commitment shall be the Revolving Maturity Date, such Loans, and increase in such case the interest rate floor (but not the Applicable Margin) applicable Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Loans Revolving Maturity Date and shall be increased on the same terms governing the Revolving Commitments pursuant to this Agreement; provided that to the extent of such differential between interest rate floors.
terms and documentation are not consistent with this Agreement (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, except to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which by clause (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateE) or (iiG) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent; provided provided, further, that the Administrative Agent no Issuing Bank shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required to act as “issuing bank” under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Revolving Facility without its written consent. Each Incremental Revolving Facility Closing Date”). The Borrower will use shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the proceeds of remaining availability under the Incremental Loans for any purpose not prohibited by this AgreementCap.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Incremental Revolving Facility Amendment and Joinder Agreement (Virtu Financial, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (i) one or more additional tranches of term loans (the “New Term Loans”), which may be of the same facility as any existing Term Loans (the commitments thereofa “Term Loan Increase”) or a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments”) or (ii) (A) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, a “Revolving Commitment Increase”) and/or (B) the establishment of one or more new revolving credit commitments (each such new commitment, a “New Revolving Commitment Tranche,” the loans thereundercollectively with any Revolving Commitment Increase, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Revolving Credit Commitments”); provided that both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Credit Commitments therefor), no Event of Default shall exist and all Specified Representations (conformed as reasonably necessary for such Investment or Permitted Acquisition to reflect at the option of the Borrower customary “SunGard” representations) shall be true and correct in all material respects (provided that, any such Specified Representation that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects); provided that, notwithstanding the above, with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a permitted Investment or Permitted Acquisition, for purposes of funding any such Loans, this condition may be waived in full or in part (subject to compliance with Section 10.01(i) hereof) by Lenders holding more than 50% of the applicable aggregate Commitments in respect of Loans to be incurred pursuant to such Incremental Amendment (other than with respect to any (I) Event of Default under Section 8.01(a) or 8.01(f) and (II) Specified Representations (conformed as reasonably necessary for such Investment or Permitted Acquisition to reflect at the option of the Borrower customary “SunGard” representations) which may only be waived with the consent of the Required Lenders). Each tranche of New Term Loans shall be in an aggregate principal amount that is not less than $10,000,000 (provided that such amount may be less than $10,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence) and each New Revolving Credit Commitments shall be in an aggregate principal amount that is not less than a Dollar Amount of $5,000,000 (provided that such amount may be less than a Dollar Amount of $5,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate amount of the New Term Loans, when added to the aggregate amount of New Revolving Credit Commitments and any Incremental Equivalent Debt incurred prior to or substantially simultaneously with the incurrence of such New Term Loans and/or New Revolving Credit Commitments, as applicable, shall not exceed the Available Incremental Amount.
(b) The terms and provisions of New Term Commitments or New Revolving Credit Commitments, as the case may be (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Term Commitments or New Revolving Credit Commitment; provided, that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans New Term Commitments and New Revolving Credit Commitments shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the Revolving Credit Loans (if any) and the Initial Term Loans made on the Closing Date and (y) may not be (I) secured by any assets other Loans and Commitments hereunder;than Collateral or (II) guaranteed by any Person other than a Guarantor,
(iiiii) the Incremental New Term Loans shall not mature earlier than the Original Term Loan Maturity Date;Date (prior to any extension thereto),
(iviii) the Incremental New Term Loans shall have a Weighted Average Life to Maturity of no shorter less than the Weighted Average Life to Maturity of as then in effect for the Loans;Initial Term Loans (prior to any extension thereto),
(viv) (x) the currency, discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (iiiii) and (iviii) above, the interest rates and the amortization schedule applicable to any such Incremental New Term Loans shall be determined by the Borrower and the Lenders thereunder, and (y) the currency, discounts, premiums, fees and optional prepayment and redemptions terms applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as New Revolving Credit Commitments shall be determined by the Borrower and the applicable Incremental LendersLenders thereunder,
(v) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject including margin and floors) applicable to any New Term Loans or New Revolving Credit Commitments will be determined by the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, Borrower and the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase New Term Loans or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield DifferentialNew Revolving Credit Commitments; provided that, if the Incremental Loans include an interestAll-rate floor greater than the interest rate floor In Yield applicable to such New Term Loans exceeds the LoansAll-In Yield of the Initial Term Loans made on the Closing Date at such time by more than 50 basis points, the differential between such interest rate floors shall be equated to then the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield of the Initial Term Loans is equal to the All-In Yield of such differential between New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan due to the application or imposition of a Eurocurrency Rate or Base Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Eurocurrency Rate or Base Rate floor applicable to such Initial Term Loan, (y) through an increase in the Applicable Rate for such Initial Term Loan or (z) any combination of (x) and (y) above, and in each case, solely to the extent that the application or imposition of such floor would cause an increase in the interest rate then in effect under the Initial Term Loans,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis or less than pro rata basis (but not greater than a pro rata basis) in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (but not greater than a pro rata basis except in the case of a prepayment under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder,
(vii) the Maturity Date of any Class of New Revolving Credit Commitments shall be no earlier than the maturity of any existing Revolving Credit Commitments and will require no scheduled amortization or mandatory commitment reduction prior to the Latest Maturity Date of any then existing Revolving Credit Commitments,
(viii) with respect to any New Revolving Credit Commitments, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on New Revolving Credit Commitments (and related outstandings), (B) repayments required upon the Maturity Date of any Revolving Credit Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments (subject to clause (3) below)) of Revolving Credit Loans with respect to New Revolving Credit Commitments after the associated Incremental Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to the provisions of Section 2.06(d) to the extent dealing with Swing Line Loans or Letters of Credit which mature or expire after a Maturity Date when there exist Revolving Credit Commitments with a longer Maturity Date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Commitments in accordance with their percentage of the Revolving Credit Commitments (and except as provided in Section 2.06(d), without giving effect to changes thereto on an earlier Maturity Date with respect to Swing Line Loans theretofore incurred and Letters of Credit theretofore issued) and (3) the permanent repayment of Revolving Credit Loans with respect to, and termination of, New Revolving Credit Commitments after the associated Incremental Amount Date shall be made on a pro rata basis with all other Revolving Credit Commitments, except that the Borrower shall be permitted, in its sole discretion, to permanently repay and terminate commitments of any such Class on better than a pro rata basis (x) as compared to any other Class with a later Maturity Date than such Class and (y) as compared to any other Class in connection with the refinancing thereof with Refinancing Revolving Credit Commitments,
(ix) except as set forth above, the material terms of any such New Term Commitments or New Revolving Credit Commitments (and the Loans in respect thereof) shall be (taken as a whole) no more favorable (as reasonably determined by the Borrower in good faith) to the New Lenders than those applicable to the Term Loans or Revolving Credit Commitments, as applicable, (except for (1) covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans or Revolving Credit Commitments, as applicable and (2) pricing, fees, rate floors, premiums, optional prepayment or redemption terms); provided that (A) except as provided in preceding clauses (i) through (viii), the terms and conditions applicable to such New Term Commitments, New Term Loans and New Revolving Credit Commitments may be materially different from those of the Term Loans or Revolving Credit Commitments, as applicable, to the extent such differences are reasonably acceptable to the Administrative Agent and (B) in the case of a Term Loan Increase or a Revolving Commitment Increase, the terms, provisions and documentation of such Term Loan Increase or a Revolving Commitment Increase shall be identical (other than with respect to upfront fees and original issue discount and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans or Revolving Credit Commitments being increased, in each case, as existing on the Incremental Facility Closing Date.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Credit Commitments and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans may be made made, and New Revolving Credit Commitments may be provided, by any existing Lender or any Additional Lender (provided that no but each existing Term Lender shall be obligated not have an obligation to make a portion of any Incremental New Term Loan) , and each existing Revolving Credit Lender shall not have an obligation to provide a portion of any New Revolving Credit Commitments, in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date2.14) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or providing such New Revolving Credit Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental New Term Loans and New Revolving Credit Commitments shall become Commitments (or in the case of a New Revolving Credit Commitments to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans or New Revolving Credit Commitments, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”)) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to legal opinions resulting from a change in law, change in fact or change to counsel’s form of opinion reasonably satisfactory to the Administrative Agent) and (b) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Term Commitment or New Revolving Credit Commitments (as applicable) are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental Loans New Term Loans, New Revolving Credit Commitments and Letters of Credit issued pursuant to any New Revolving Credit Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any New Term Loans or New Revolving Credit Commitments unless it so agrees.
(d) Each of the representations and warranties made by Upon any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as which New Revolving Credit Commitments are effected through the establishment of a new Class of revolving credit commitments pursuant to this Section 2.14, (i) if, on such date, except there are any revolving loans under any Revolving Credit Facility then outstanding, such revolving loans shall be prepaid from the proceeds of a new Borrowing of the New Revolving Credit Loans under such new Class of New Revolving Credit Commitments in such amounts as shall be necessary in order that, after giving effect to such Borrowing and all such related prepayments, all revolving credit loans under all Revolving Credit Facilities will be held by all Lenders under the Revolving Credit Facilities (including New Revolving Credit Lenders) ratably in accordance with their revolving credit commitments under all Revolving Credit Facilities (after giving effect to the extent establishment of such representations and warranties expressly relate to an earlier dateNew Revolving Credit Commitments), (ii) in which the case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materialityof a Revolving Credit Commitment, in which case such representation and warranty there shall be accurate an automatic adjustment to the participations hereunder in Letters of Credit and Swing Line Loans held by each Lender under the Revolving Credit Facilities so that each such Lender shares ratably in such participations in accordance with their revolving credit commitments under all respects) as Revolving Credit Commitments (after giving effect to the establishment of such earlier date.
New Revolving Credit Commitments), (eiii) Notwithstanding anything each New Revolving Credit Commitment shall be deemed for all purposes a Revolving Credit Commitment and each Loan made thereunder shall be deemed, for all purposes, a Revolving Credit Loan and (iv) each New Revolving Credit Lender shall become a Lender with respect to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary New Revolving Credit Commitments and the Borrower and the Administrative Agent may amend Section 2.12 to implement all matters relating thereto. Upon any Incremental Amendment.Facility Closing Date on which New Revolving Credit Commitments are effected through a Revolving Commitment Increase, if, on the date of such increase, there are any Revolving Credit Loans outstanding, each of the Revolving Credit Lenders under such Class shall assign to each of the New Revolving Credit Lenders, and each of the New Revolving Credit Lenders shall purchase from each of the Revolvin
Appears in 1 contract
Sources: Credit Agreement (M/a-Com Technology Solutions Holdings, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Syndication Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (x) one or more additional tranches or additions to an existing tranche of Loans term loans (the commitments thereof, the “Incremental Commitments,” Term Loans”) in an aggregate amount not to exceed $820,000,000 or (y) one or more increases in the loans thereunderamount of the Revolving Credit Commitments on the same terms as the Revolving Credit Facility (a “Revolving Commitment Increase”) in an aggregate amount not to exceed $25,000,000, the “Incremental Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
that (i) both at the time of any such request and upon the effectiveness of any Incremental Amendment referred to below, no Default or Event of Default shall exist and at the time that any such Incremental Term Loan is made (and after giving effect to thereto) no Default or Event of Default shall exist, (ii) both at the time of any such request and upon the effectiveness of any Incremental LoansAmendment referred to below, all of the aggregate amount representations and warranties of Incremental Loans each Loan Party set forth in Article V and in each other Loan Document shall be true and correct in all material respects as of such time (except to the extent such representations and warranties expressly relate to an earlier date, in which case they shall be true and correct in all material respects as of such earlier date), and (iii) the Borrower shall be in compliance with the covenants set forth in Section 7.11 and the Total Leverage Ratio shall not exceed an amount equal to 3.00:1.00 in the sum case of (x) an unlimited amount at any time so long as Incremental Amendment entered into after the Secured Net Leverage Ratio First Amendment Effective Date, in each case determined on a Pro Forma Basis (but without giving effect to as of the cash proceeds remaining on the balance sheet of such Incremental Loans) as date of the most recently completed period ended Test Period (or, if no Test Period cited in Section 7.11 has passed, the covenants in Section 7.11 for the first Test Period cited in such Section shall be satisfied as of the last four consecutive quarters ended), in each case, as if such Incremental Term Loans or Revolving Loans available pursuant to such Revolving Commitment Increases, as applicable, had been outstanding on the last day of such fiscal quarters quarter of the Borrower for which the financial statements and certificates required by Section 5.1(a) or testing compliance therewith.
(b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available Incremental Term Loans that are added to the Borrower pursuant to this clause (y) existing tranche of Term Loans shall be available at all times and shall not be subject have identical terms to the ratio test described in foregoing clause existing Term Loans. All other Incremental Term Loans (x); provided, further, that the Borrower may incur such Indebtedness under any clause (xi) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Revolving Credit Loans and Commitments hereunder;
the Term Loans, (iiiii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to the Term Loans, (iii) shall not have interest rate margins that are greater than the highest interest rate margins that may, under any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) circumstances, be payable with respect to any Incremental Amendment made on or prior Term Loans plus 25 basis points (and the interest rate margins applicable to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject Term Loans shall be increased to the first proviso in extent necessary to achieve the foregoing); provided that solely for purposes of this clause (vii)iii), with such increased amount being equated the interest rate margins applicable to interest margin for purposes of determining any increase Term Loans or Incremental Term Loans shall be deemed to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined include all upfront or similar fees or original issue discount payable by the Borrower and the applicable generally to Lenders providing such Term Loans or such Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest Term Loans based on an assumed four-year life to maturity orand the effect of any LIBO Rate or Base Rate floors, if shorterin each case as determined by the Administrative Agent), the remaining (iv) shall have an average life to maturity thereofnot shorter than the remaining Weighted Average Life to Maturity of then-existing Term Loans and (v) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected except as a refinancing trancheprovided herein, the original issue discount terms and conditions applicable to Incremental Term Loans may be materially different from those of the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Term Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable such differences are reasonably satisfactory to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor Administrative Agent.
(but not the Applicable Marginc) applicable to the Each tranche of Incremental Term Loans shall be increased to in an aggregate principal amount that is not less than $25,000,000 and shall be in an increment of $1,000,000 and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (provided that in each case such amount may be less if such amount represents all remaining availability under the extent limit set forth in the first sentence of such differential between interest rate floorsSection 2.16(a)).
(bd) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.16 shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional (but no existing Lender (provided that no Lender shall be obligated will have an obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to Term Loan or any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding portion of any terms applicable after the Maturity DateRevolving Commitment Increase) or by any other bank or other financial institution (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) any such other bank or administrative natureother financial institution being called an “Additional Lender”), shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.16. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on the date thereof (each, an “Incremental Facility Closing Date”) of each of the condition conditions set forth in clause Section 4.02 (dit being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”)agree. The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) . No Lender shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the obligated to provide any Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateTerm Loans or Revolving Commitment Increases unless it so agrees.
(e) Notwithstanding anything Upon each increase in the Revolving Credit Commitments pursuant to this Section 2.16, (a) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (b) if, on the date of such increase, there are any Revolving Credit Loans under the applicable Facility outstanding, such Revolving Credit Loans shall on or prior to the contrary hereineffectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(f) This Section 2.19 2.16 shall supersede any provisions in Sections 2.12 Section 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Credit Agreement (Trinseo S.A.)
Incremental Credit Extensions. (a) The Borrower a)Parent may, at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), as (i) no Event of Default shall exist; provided that, with respect to any Incremental Term Loans the case may beproceeds of which are to be used primarily to fund a Permitted Acquisition or other acquisition not prohibited hereunder the consummation of which is not conditioned on the availability of third-party financing substantially concurrently upon the receipt thereof, have been the absence of an Event of Default (other than a Specified Event of Default with respect to any Borrower) shall not constitute a condition to the issuance or were required to incurrence of such Incremental Term Loans, and (ii) Parent and its Restricted Subsidiaries shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered does not exceed 3.00 pursuant to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) 6.01 or Section 6.1(b)(ii)(y)); provided that6.01(b) (which, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and calculated after giving effect to any Incremental Loans made thereunder); and
(vii) with respect acquisition consummated concurrently therewith or to any Incremental Amendment made on or prior to be consummated using the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness proceeds of such Incremental AmendmentFacilityTerm Loans or Revolving Commitment Increase, the Applicable Margin then in effect for as applicable, and calculated assuming any Revolving Commitment Increase is fully drawn). Each tranche of Incremental Term Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors and each Revolving Commitment Increase shall be equated to in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as limit set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”next sentence). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary aggregate amount of the Incremental Term Loans and the Borrower and Revolving Commitment Increases (other than, for the Administrative Agent may amend avoidance of doubt, those established in respect of Extended Term Loans or Extension Revolving Credit Commitments pursuant to Section 2.12 to implement any 2.16) shall not exceed the Maximum Incremental AmendmentFacilities Amount.
Appears in 1 contract
Sources: Credit Agreement (Uniti Group Inc.)
Incremental Credit Extensions. (a) The Borrower may, at At any time or and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available such notice to each of the Lenders), request to effect one or more additional revolving credit facility tranches hereunder (or an increase of the Revolving Commitments hereunder) (“Incremental Revolving Facilities”) from Additional Revolving Lenders; provided that (A) at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, no Default shall have occurred and be continuing or shall result therefrom (or, in the case of the incurrence or provision of any Incremental Revolving Facility in connection with a Limited Condition Acquisition, no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (A) above and setting forth the applicable clause(s) of the definition of “Incremental Cap” utilized for such Incremental Revolving Facility, together with, to the extent utilizing clause (b) of the definition of “Incremental Cap,” reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA or Consolidated Interest Expense, as applicable, for the relevant period), (C) such Incremental Revolving Facility (x) shall be secured solely by Collateral on a pari passu basis with or junior basis to the Initial Revolving Loans (provided that to the extent such Incremental Revolving Facility is secured by junior Liens, the applicable parties shall have entered into the Junior Lien Intercreditor Agreement) or shall otherwise be unsecured and (y) shall not be guaranteed by any Persons other than Loan Parties, (D) except as set forth in clause (F) below, the interest rate margins, rate floors, fees, premiums and maturity applicable to any Incremental Revolving Facility shall be determined by the Borrower and the Additional Revolving Lenders providing such Incremental Revolving Facility, provided that no Incremental Revolving Facility shall mature prior to the Revolving Maturity Date or require any scheduled amortization or mandatory commitment reductions prior to the Revolving Maturity Date, (E) any Incremental Revolving Facility may be provided in any currency as mutually agreed among the Administrative Agent, the Borrower and the Additional Revolving Lenders, (F) in the case of an increase in the Revolving Commitments hereunder, the maturity date of such increase in the Revolving Commitment shall be the Revolving Maturity Date, such increase in the Revolving Commitment shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date and shall be on the same terms governing the Revolving Commitments pursuant to this Agreement and (G) subject to the express requirements herein, any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders providing the applicable Incremental Revolving Facilities; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clause (D) or (E) above), they shall be reasonably satisfactory to the Administrative Agent; provided, further, that no Issuing Bank shall be required to act as “issuing bank” and no Swingline Lender shall be required to act as a “swingline lender” under any such Incremental Revolving Facility without its written consent. Each Incremental Revolving Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the Incremental Cap.
(i) At any time and from time to time after the Closing Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available such notice to each of the Lenders), request to effect one or more additional tranches of term loans hereunder or increases (so long as the interest rate margins, rate floors, fees, funding discounts and other terms of any such increase are identical to the Term Loans being increased) in the amount of Term Loans (the commitments thereof, the “Incremental Commitments,Term Facilities” the loans thereunderand, the “together with any Incremental Loans,” and a Lender making such loansRevolving Facility, an “Incremental LenderFacility”)) from one or more Additional Term Lenders; provided that:
that (iA) after giving effect to any at the time of each such request and upon the effectiveness of each Incremental LoansTerm Facility Amendment, the aggregate amount of Incremental Loans no Default shall not exceed an amount equal to the sum of have occurred and be continuing or shall result therefrom (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessor, in the case of this the incurrence or provision of any Incremental Term Facility in connection with a Limited Condition Acquisition, no Event of Default under Section 7.01(a), (b), (h) or (i) shall have occurred and be continuing or shall result therefrom), (B) the Borrower shall have delivered a certificate of a Financial Officer certifying as to clause (yA) above and setting forth the applicable clause(s) of the definition of Incremental Cap utilized for such Incremental Term Facility, together with, to the extent utilizing clause (b) of the definition of Incremental Cap, reasonably detailed calculations demonstrating compliance with such clause (b) (which calculations shall, if made as of the last day of any fiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 5.01(a) or (b) and Section 5.01(d), the aggregate principal amount respectively, be accompanied by a reasonably detailed calculation of Indebtedness incurred under Section 6.1(b)(vi)(y) Consolidated EBITDA or Section 6.1(b)(ii)(y)); provided thatConsolidated Interest Expense, as applicable, for the avoidance relevant period), (C) the maturity date of doubt, the amount available to the Borrower any Incremental Term Loans incurred pursuant to this clause (y) shall be available at all times and any Incremental Term Facility shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Term Maturity Date;
(iv) the Date and such Incremental Loans Term Facility shall not have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Term Loans;
), (vD) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable All-In Yield for any term loans incurred pursuant to any such Incremental Loans Term Facility shall be determined by the Borrower and the applicable Additional Term Lenders; provided that in the event that the All-In Yield for such term loans is greater than the All-In Yield for the Initial Term Loans by more than 50 basis points, then the All-In Yield for the Initial Term Loans shall be increased to the extent necessary so that the All-In Yield is equal to the All-In Yield for such term loans incurred pursuant to such Incremental Lenders;
Term Facility minus 50 basis points; provided, further, that this clause (vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)D) shall exist on the Incremental Facility Closing Date with respect not be applicable to any Incremental Amendment entered into Term Facility that is not secured by Liens on the Collateral on a pari passu basis with the Initial Term Loans; provided, further, that, in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior determining the All-In Yield applicable to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject term loans incurred pursuant to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Term Facility and the applicable Incremental LendersInitial Term Loans (x) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof“OID”) and or upfront fees (which shall be deemed to constitute like amount amounts of original issue discountOID) payable by Borrower to the Term Lenders or any Additional Term Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), but excluding any arrangement, structuring (y) customary arrangement or other commitment fees payable to the Lead Arrangers (or their respective affiliates) in connection therewith that are not shared with all Lenders providing such this Agreement or to one or more arrangers (or their affiliates) of any Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans Term Facility shall be taken into account), by more than 50 basis points excluded and (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, z) if the Incremental Loans include Term Facility includes an interest-interest rate floor greater than the interest rate floor applicable to the Initial Term Loans, the differential between such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin for the Initial Term Loans shall be required, but only to the extent an increase in the interest rate floor applicable to in the Initial Term Loans would cause an increase in the Applicable Margin applicable to such Loansinterest rate then in effect, and in such case the interest rate floor (but not the Applicable Margininterest rate margin) applicable to the Loans relevant Existing Credit Agreement shall be increased by such amount as will result in the interest margin applicable to such Incremental Term Facility plus the interest rate floor applicable to such Incremental Term Facility (to the extent such floor is in excess of such differential between the three month LIBO Rate then applicable) being no greater than the interest rate floors.
floor (bas so increased) Except as set forth in Section 2.19(aplus the interest rate margin applicable to Initial Term Loans minus 50 basis points (this clause (D), the “MFN Protections”), (E) the Incremental Term Loans incurred pursuant to any Incremental Term Facility (x) shall be treated substantially secured solely by the same Collateral on a pari passu basis with or junior basis to the Initial Term Loans (provided that to the extent such Incremental Term Facility is secured by junior Liens the applicable parties shall have entered into the Junior Lien Intercreditor Agreement) and (y) shall not be guaranteed by any Persons other than Loan Parties, (F) any Incremental Term Facility may be provided in any currency as mutually agreed among the LoansAdministrative Agent, including with respect the Borrower and the Additional Term Lenders and (G) subject to mandatory the express requirements herein, any Incremental Term Facility Amendment shall be on the terms and voluntary prepayments (unless pursuant to documentation to be determined by the Borrower and the Additional Term Lenders providing the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (Term Facilities; provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all such terms and documentation are not consistent with respect to any Incremental Loan which this Agreement (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect except to the Loans extent permitted by clause (but excluding any terms applicable after the Maturity DateD), (E) or (iiF) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureabove), they shall in each case be reasonably satisfactory to the Administrative Agent. Each Incremental Term Facility shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof; provided that the Administrative Agent shall have consented (such consent not to amount may be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans less than $25,000,000 if such consent amount represents all the remaining availability under the Incremental Cap.
(ii) Notwithstanding anything to the contrary herein, no Incremental Facility may be established or incurred under this Section 2.18 in an amount that would exceed the Incremental Cap at the time of such establishment or incurrence. Notwithstanding anything herein to the contrary, no existing Lender will be required under to participate in any Incremental Revolving Facility or Incremental Term Facility without its consent.
(b) Each notice from the Borrower pursuant to this Section 10.6(bshall set forth the requested amount of the relevant Incremental Revolving Facility or Incremental Term Facility.
(i) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of any Incremental Loans Revolving Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each the applicable Additional Lender, if any, Revolving Lenders and the Administrative Agent. The Incremental Revolving Facilities may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to participate in any Incremental Revolving Facility) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section including(including to provide for the issuance of letters of credit and swingline loans thereunder and to provide for the treatment of defaulting lenders). Subject to Section 1.08, subject in the case of an Incremental Revolving Facility incurred to clause (b) of this Section 2.19finance a Limited Condition Acquisition, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Revolving Facility Amendment shall be (shall, unless waived or not required otherwise agreed to by the Incremental Lenders in connection with a Limited Condition Transaction) Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Revolving Facility Closing Date”). The Borrower will use the proceeds ) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” (or other similar reference) in Section 4.02 shall be deemed to refer to the Incremental Loans for any purpose not prohibited Revolving Facility Closing Date) and, to the extent reasonably requested by this Agreementthe Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (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).
(dii) Each Commitments in respect of any Incremental Term Facility shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, the applicable Additional Term Lenders and the Administrative Agent. Incremental Term Facilities may be provided, subject to the prior written consent of the representations and warranties made Borrower (not to be unreasonably withheld), by any Loan Party existing Lender (it being understood that no existing Lender shall have any right to participate in any Incremental Term Facility or, unless it agrees, be obligated to provide any Incremental Term Facilities) or pursuant by any Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to the any Loan Documents (oras may be necessary or appropriate, in connection with the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. Subject to Section 1.08 in the case of an Incremental Term Facility incurred to finance a Limited Condition TransactionAcquisition, the effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each customary of the conditions set forth in Section 4.02 (it being understood that all references to “SunGardthe date of such Borrowing” representation and warranty(or other similar reference) in Section 4.02 shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of deemed to refer to the Incremental Term Facility Closing Date as if made on and as of such dateDate) and, except to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 4.01 (other than changes to such representations and warranties expressly relate legal opinions resulting from a change in law, change in fact or change to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as counsel’s form of such earlier dateopinion reasonably satisfactory to the Administrative Agent).
(ei) Notwithstanding anything Upon each increase in the Revolving Commitments pursuant to this Section, each Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of such increase (each a “Revolving Commitment Increase Lender”), and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender's participations hereunder in outstanding Letters of Credit such that, after giving effect to such increase and each such deemed assignment and assumption of participations, the contrary herein, this Section 2.19 shall supersede any provisions percentage of the aggregate outstanding participations hereunder in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.Letters of Credit held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal su
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Incremental Credit Extensions. (ai) The Borrower may, at At any time or and from time to time after the Closing Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy make available to each of the Lenders), request to effect one or more additional revolving credit facility tranches of Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Revolving Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, or increases in the aggregate amount of the Revolving Commitments (each such increase, a “Revolving Commitment Increase”; together with the Incremental Loans Revolving Loans, “Incremental Revolving Facilities”) from Additional Revolving Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Revolving Facility Amendment, (A) no Event of Default shall not exceed an amount equal to have occurred and be continuing or shall result therefrom, (B) the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.12 (but without giving effect whether or not such covenant is required to the cash proceeds remaining on the balance sheet of be complied with at such Incremental Loanstime) recomputed as of the most last day of the most-recently completed period ended fiscal quarter of four consecutive fiscal quarters the Borrower for which the financial statements and certificates required by have been delivered pursuant to Section 5.1(a5.01(a) or (b), as (C) the case may beBorrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under together with reasonably detailed calculations demonstrating compliance with clause (yB) below)above, plus (yD) $175,000,000 (less, in the case of this clause (y)a Revolving Commitment Increase, the aggregate principal amount maturity date of Indebtedness incurred under Section 6.1(b)(vi)(y) such Revolving Commitment Increase shall be the Revolving Maturity Date, such Revolving Commitment Increase shall require no scheduled amortization or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available mandatory commitment reduction prior to the Borrower Revolving Maturity Date and such Revolving Commitment Increase shall be on the same terms governing the Revolving Commitments pursuant to this clause Agreement, (yE) in the case of any Incremental Revolving Loans, the maturity date thereof shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature no earlier than the Revolving Maturity Date and such Incremental Revolving Loans shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Maturity Date;
, (ivF) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule rate margins applicable to any such Incremental Revolving Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, lenders thereunder; provided that in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to event that the interest rate margins for any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made Revolving Loans, on or prior to the date that is eighteen (18) months after the Closing Effective Date, if are higher than the all-in-yield (whether in the form of interest rate marginsmargins for the Revolving Loans by more than 50 basis points, original issue discount, upfront fees or then the interest rate floors (subject margins for the Revolving Loans shall be increased to the first proviso in this clause (vii)), with extent necessary so that such increased amount being equated to interest margin for purposes of determining any increase rate margins are equal to the Applicable Margin under interest rate margins for such Incremental Revolving Loans minus 50 basis points; provided, further, that, in determining the Facility) with respect interest rate margins applicable to the Incremental Revolving Loans made thereunder (as determined by the Borrower incurred pursuant to such Incremental Revolving Facility and the applicable Incremental LendersRevolving Loans, (x) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof“OID”) and or upfront fees (which shall be deemed to constitute like amount amounts of original issue discountOID for purposes of this determination) payable by the Borrower to the Revolving Lenders or any Additional Revolving Lenders (with OID being equated to interest based on assumed four-year life to maturity), but excluding any arrangement, structuring (y) custom ary arrangement or other commitment fees payable to any of the Joint Bookrunners (or their respective Affiliates) in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated this Agreement or to the interest rateone or more arrangers (or their Affiliates) with respect to the existing Loans, after giving effect to of any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans Revolving Commitment Increase shall be taken into account), by more than 50 basis points excluded and (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, z) if the Incremental Loans include Revolving Commitment Increase includes an interest-interest rate floor greater than the interest rate floor applicable to the Revolving Loans, the differential between such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin for the Revolving Loans shall be required, but only to the extent an increase in the interest rate floor applicable to in the Revolving Loans would cause an increase in the Applicable Margin applicable to such Loansinterest rate then in effect, and in such case the interest rate floor (but not the Applicable Margininterest rate margin) applicable to the Revolving Loans shall be increased by such increased amount, and (G) any Incremental Revolving Facility Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Additional Revolving Lenders with the applicable Incremental Revolving Facilities; provided that to the extent of such differential between interest rate floors.
terms and documentation are not consistent with this Agreement (b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, except to the extent not permitted in this Section 2.19by clause (F) above), all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, they shall in each case be reasonably satisfactory to the Administrative Agent; provided, further, that no Issuing Bank or Swingline Lender shall be required to act as “issuing bank” or “swingline lender” under any such Incremental Revolving Facility without its written consent. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Incremental Revolving Facilities, (ii) the aggregate principal amount of all Term Commitment Increases incurred after the Effective Date and (iii) the aggregate principal amount of all Additional Notes issued after the Effective Date pursuant to Section 6.01(a)(xxiii) shall not exceed the Incremental Cap. Each Incremental Revolving Facility shall be in a minimum principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such amount may be less than $10,000,000 if such amount represents all the remaining availability under the aggregate principal amount of Incremental Revolving Facilities set forth above.
(ii) At any time and from time to time after the Effective Date, subject to the terms and conditions set forth herein, the Borrower may, by notice to the Administrative Agent (whereupon the Administrative Agent shall promptly make available to each of the Lenders), request to effect one or more additional tranches of terms loans hereunder or increases in the aggregate amount of the Term Commitments which shall take the form of an additional tranche of term loans hereunder (each such increase, a “Term Commitment Increase”) from one or more Additional Term Lenders; provided that at the time of each such request and upon the effectiveness of each Incremental Term Facility Amendment, (A) no Event Default shall have consented occurred and be continuing or shall result therefrom (B) the Borrower shall be in compliance on a Pro Forma Basis with the covenant contained in Section 6.12 (whether or not such consent covenant is applicable at such at such time in accordance with its terms) recomputed as of the last day of the most-recently ended fiscal quarter of the Borrower for which financial statements have been delivered pursuant to Section 5.01(a) or (b), (C) the Borrower shall have delivered a certificate of a Financial Officer to the effect set forth in clauses (A) and (B) above, together with reasonably detailed calculations demonstrating compliance with clause (B) above, (D) the maturity date of any term loans incurred pursuant to such Term Commitment Increase shall not be earlier than the Term Maturity Date and the Weighted Average Life to Maturity of any such Term Loans incurred pursuant to such Term Commitment Increase shall not be shorter than the remaining Weighted Average Life to Maturity of the Term Loans, (E) the interest rate margins and, subject to clause (D), the amortization schedule for any term loans incurred pursuant to such Term Commitment Increase shall be determined by the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases; provided that in the event that the interest rate margins for any term loans incurred, on or prior to the date that is eighteen months after the Effective Date, pursuant to such Term Commitment Increase are higher than the interest rate margins for the Term Loans by more than 50 basis points, then the interest rate margins for the Term Loans shall be increased to the extent necessary so that such interest rate margins are equal to the interest rate margins for such term loans incurred pursuant to such Term Commitment Increase minus 50 basis points; provided, further, that, in determining the interest rate margins applicable to the term loans incurred pursuant to such Term Commitment Increase and the Term Loans (x) OID or upfront fees (which shall be deemed to constitute like amounts of OID) payable by Borrower to the Term Lenders or any Additional Term Lenders in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity), (y) customary arrangement or commitment fees payable to any of the Joint Bookrunners (or their respective affiliates) in connection with this Agreement or to one or more arrangers (or their affiliates) of any Term Commitment Increase shall be excluded and (z) if the Term Commitment Increase includes an interest rate floor greater than the interest rate floor applicable to the Term Loans, such increased amount shall be equated to interest margin for purposes of determining whether an increase to the applicable interest margin for the Term Loans shall be required, to the extent an increase in the interest rate floor in the Term Loans would cause an increase in the interest rate then in effect, and in such case the interest rate floor (but not the interest rate margin) applicable to the Term Loans shall be increased by such increased amount and (F) any Incremental Term Facility Amendment shall be on the terms and pursuant to documentation to be unreasonably withhelddetermined by the Borrower and the Additional Term Lenders with the applicable Term Commitment Increases; provided that to the extent such terms and documentation are not consistent with this Agreement (except to the extent permitted by clauses (D) or (E) above), conditioned or delayedthey shall be reasonably satisfactory to the Administrative Agent. Notwithstanding anything to contrary herein, the sum of (i) the aggregate principal amount of the Term Commitment Increases, (ii) the aggregate principal amount of all Incremental Revolving Facilities after the Effective Date and (iii) the aggregate principal amount of all Additional Notes issued after the Effective Date pursuant to Section 6.01(a)(xxiii) shall not exceed the Incremental Cap. Each Term Commitment Increase shall be in a minimum principal amount of $25,000,000 and integral multiples of $1,000,000 in excess thereof; provided that such Lender’s making such Incremental Loans amount may be less than $25,000,000 if such consent would be required amount represents all the remaining availability under the aggregate principal amount of Term Commitment Increases set forth above.
(i) Each notice from the Borrower pursuant to this Section 10.6(bshall set forth the requested amount of the relevant Incremental Revolving Loan, Revolving Commitment Increase or Term Commitment Increase.
(ii) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of any Incremental Loans Revolving Loan or Revolving Commitment Increase shall become Commitments (or in the case of any Revolving Commitment Increase to be provided by an existing Revolving Lender, an increase in such Revolving Lender’s Revolving Commitment) under this Agreement pursuant to an amendment (an “Incremental Revolving Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each such Additional Revolving Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Revolving Loans and Revolving Commitment Increases may be provided, subject to the prior written consent of the Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have the right to participate in any Incremental Revolving Facility or, unless it agrees, be obligated to provide any Incremental Revolving Loan or Revolving Commitment Increase) or by any Additional Revolving Lender. An Incremental Revolving Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebySection. The effectiveness of any Incremental Revolving Facility Amendment shall be (shall, unless waived or not required otherwise agreed to by the Incremental Lenders in connection with a Limited Condition Transaction) Administrative Agent and the Additional Revolving Lenders, be subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Revolving Facility Closing Date”). The Borrower will use the proceeds ) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Loans for any purpose not prohibited Revolving Facility Closing Date) and, to the extent reasonably requested by this Agreementthe Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (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).
(diii) Each Commitments in respect of any Term Commitment Increase shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Term Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents executed by the Borrower, such Additional Term Lender and the Administrative Agent. Term Commitment Increases may be provided, subject to the prior written consent of the representations and warranties made Borrower (not to be unreasonably withheld), by any existing Lender (it being understood that no existing Lender shall have any right to participate in any Term Commitment Increase or, unless it agrees, be obligated to provide any Term Commitment Increases) or by any Additional Term Lender. An Incremental Term Facility Amendment may, without the consent of any other Lenders, effect such amendments to any Loan Party Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section. The effectiveness of any Incremental Term Facility Amendment shall, unless otherwise agreed to by the Administrative Agent and the Additional Term Lenders, be subject to the satisfaction on the date thereof (each, an “Incremental Term Facility Closing Date”) of each of the conditions set forth in Section 4.02 (it being understood that all references to “the date of such Borrowing” in Section 4.02 shall be deemed to refer to the Incremental Term Facility Closing Date) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Effective Date under Section 4.01 (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).
(i) Upon each Revolving Commitment Increase pursuant to the Loan Documents (or, in connection with a Limited Condition Transactionthis Section, each customary Revolving Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Additional Revolving Lender providing a portion of such Revolving Commitment Increase (each a “SunGard” representation Revolving Commitment Increase Lender”), and warranty) shall each such Revolving Commitment Increase Lender will automatically and without further act be true deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit and correct in all material respects (except where Swingline Loans such representations that, after giving effect to such Revolving Commitment Increase and warranties are already qualified by materialityeach such deemed assignment and assumption of participations, in which case such representation and warranty shall be accurate in all respects) on and as the percentage of the Incremental Facility Closing Date as if made on aggregate outstanding (A) participations hereunder in Letters of Credit and as (B) participations hereunder in Swingline Loans held by each Revolving Lender (including each such Revolving Commitment Increase Lender) will equal such Revolving Lender’s Applicable Percentage. Any Revolving Loans outstanding immediately prior to the date of such date, Revolving Commitment Increase that are Eurocurrency Loans will (except to the extent otherwise repaid in accordance herewith) continue to be held by, and all interest thereon will continue to accrue for the accounts of, the Revolving Lenders holding such representations and warranties expressly relate Loans immediately prior to an earlier datethe date of such Revolving Commitment Increase, in each case until the last day of the then-current Interest Period applicable to any such Loan, at which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall time it will be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.repaid
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, at any time or from From time to time on or after the Closing Date, by notice from subject to the terms and conditions set forth herein, the Borrower may, upon ten (10) Business Days’ prior written notice to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request to add one or more additional tranches of Loans term loans (the commitments thereof“Incremental Term Loans”) or one or more increases in the Revolving Commitments (the “Incremental Revolving Commitments”; together with the Incremental Term Loans, the “Incremental Commitments,” the loans thereunder, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderFacilities”); , provided that:
that at the time of the effectiveness of each Incremental Facility Amendment (i) no Default or Event of Default has occurred and is continuing or shall result therefrom, (ii) the Borrower and its Restricted Subsidiaries shall be in pro forma compliance with each of the covenants set forth in ARTICLE VI as of the last day of the most recently ended Fiscal Quarter after giving effect to any such Incremental Revolving Commitments (assuming for such purpose that such Incremental Revolving Commitments are fully drawn at such time) or Incremental Term Loans, as applicable, (iii) each of the aggregate amount of Incremental Loans conditions set forth in Section 3.2 shall not exceed an amount equal to have been satisfied and (iv) the sum of (x) an unlimited amount at any time so long Administrative Agent shall have received from the Borrower such legal opinions, resolutions, certificates and other documents as the Secured Net Leverage Ratio on a Pro Forma Basis (Administrative Agent may reasonably request. Notwithstanding anything to contrary herein, but without giving effect subject to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (ye) immediately below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for all Incremental Facilities shall not exceed the avoidance sum of doubt, the amount available to the Borrower pursuant to this clause (y) $380,000,000. Each Incremental Facility shall be available at in an integral multiple of $5,000,000 and be in an aggregate principal amount that is not less than $10,000,000 in case of Incremental Term Loans or $10,000,000 in case of Incremental Revolving Commitments, provided that such amount may be less than the applicable minimum amount if such amount represents all times and shall not be subject the remaining availability hereunder as set forth above or if the Administrative Agent agrees in writing to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the a lesser minimum amount. Each Incremental Loans Facility shall rank pari passu in right of payment payment, and shall have the same guarantees as, and be secured by the same Collateral securing, all of security with the other Loans and Commitments Obligations hereunder;.
(iiib) Except with respect to the Term Loan A-1, any Incremental Term Loans (i) for purposes of prepayments, shall be treated substantially the same as (and in any event no more favorably than) the Term Loan A and (ii) other than amortization, pricing or maturity date, shall have the same terms as the Term Loans or such other terms as are reasonably satisfactory to the Administrative Agent; provided that, except as provided in clause (f) below (A) any Incremental Loans Term Loan shall not mature have a final maturity date earlier than the Term Loan A Maturity Date;
Date and (ivB) the any Incremental Loans Term Loan shall not have a Weighted Average Life to Maturity no that is shorter than the Weighted Average Life to Maturity of the Loans;then-remaining Term Loan A.
(vc) subject Any Incremental Revolving Commitment shall be on the same terms and conditions as, and pursuant to clauses (iii) and (iv) abovethe same documentation as applicable to, the interest rates Revolving Commitments. From and after the amortization schedule applicable making of an Incremental Term Loan or the addition of any Incremental Revolving Commitments pursuant to any this Section, such Incremental Loans shall be determined by the Borrower Term Loan and the applicable such revolving loan funded pursuant to an Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which Revolving Commitment shall be deemed to constitute like amount of original issue discount)a “Loan”, but excluding any arrangement“Term Loan” and/or “Revolving Loan”, structuring or other fees payable in connection therewith that are not shared with as applicable, hereunder for all Lenders providing such Incremental Loanpurposes hereof, which shall not be included and equated to the interest rate) with respect to the existing Loansand, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including clause (b) immediately above with respect to mandatory Incremental Term Loans, shall be subject to the same terms and voluntary prepayments conditions as each other Term Loan or Revolving Loan made pursuant to this Agreement.
(unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepaymentsd) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans and/or Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those Revolving Commitments. Except with respect to the Loans Term Loan A-1, each Lender shall have the right for a period of ten (but excluding any terms applicable after the Maturity Date10) or (ii) relate days following receipt of such notice, to provisions of a mechanical (including with respect elect by written notice to the Collateral Borrower and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; Agent to provide the requested Incremental Facility by a principal amount equal to its Pro Rata Share of such Incremental Facility. Any Lender who does not respond within such 10 day period shall be deemed to have elected not to provide such Incremental Facility. If any Lender shall elect not to provide such Incremental Facility pursuant to this Section 2.24, the Borrower may designate any other bank or other financial institution (which may be, but need not be, one or more of the existing Lenders), which agrees to provide such Incremental Facility (any such other bank or other financial institution being called an “Additional Lender”) and in the case of any Additional Lender, agrees to become a party to this Agreement, provided that the Issuing Bank (in the case of an increase through an Incremental Revolving Commitment) and the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Incremental Revolving Commitment if such consent would be required under Section 10.6(b10.4(b) for an assignment of Loans or Revolving Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Loans Any Additional Lender shall become Commitments a Lender under this Agreement pursuant to an amendment (an “Incremental Facility Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each such Additional Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent; provided, that no Incremental Facility Amendment shall be required for the Term Loan A-1 if the Administrative Agent and the Borrower so determine. The No Incremental Facility Amendment shall require the consent of any Lenders other than the Additional Lenders and/or any existing Lender who has elected to provide any Incremental Term Loans or increase its Revolving Commitment with respect to such Incremental Facility Amendment. No Lender shall be obligated to provide any Incremental Term Loans or Incremental Revolving Commitments, unless it so agrees. Commitments in respect of any Incremental Term Loans or Incremental Revolving Commitments shall become Commitments under this Agreement. An Incremental Facility Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other any Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerAgent, to effect the provisions of this Section includingSection. Upon each increase in the Revolving Commitments pursuant to this Section, subject (a) each Lender holding a Revolving Commitment immediately prior to clause such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Incremental Revolving Commitment (each a “Incremental Revolving Lender”) in respect of such increase, and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Lender’s participations hereunder in outstanding Letters of Credit and Swingline Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swingline Loans held by each Lender holding a Revolving Commitment (including each such Incremental Revolving Lender) will equal its Pro Rata Share and (b) if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such increase of the Revolving Commitments be prepaid from the proceeds of additional Revolving Loans made hereunder (reflecting such increase in Revolving Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Loans being prepaid and any costs incurred by any Lender in accordance with Section 2.19. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. This Section 2.24(d) shall supersede any provisions in Section 2.21(a) and Section 10.2 to the contrary.
(e) If the Term Loan A-1 Commitment provided on the Closing Date is less than $50,000,000, the Borrower shall have the right for a period of 30 days following the Closing Date to obtain an Incremental Term Loan in accordance with this Section 2.192.24, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness principal amount of any such Incremental Amendment Term Loan shall be (unless waived or not required by excluded for purposes of determining the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition limitations set forth in clause (da) below and such other conditions as the parties thereto shall agree of this Section 2.24; provided, that (the effective date of any i) such Incremental AmendmentTerm Loan shall for all purposes be deemed to be the “Term Loan A-1” and shall be subject to the terms, an conditions and provisions herein related to the “Term Loan A-1” and (ii) in no event shall such Incremental Facility Term Loan, together with any portion of the Term Loan A-1 funded on the Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement, if any, exceed $50,000,000.
(df) Each Notwithstanding anything herein to the contrary, no more than $180,000,000 in aggregate principal amount of Incremental Facilities that are incurred after the Amendment Effective Date shall have either (i) a final maturity date earlier than the Term Loan A Maturity Date or (ii) a Weighted Average Life to Maturity that is shorter than the Weighted Average Life to Maturity of the representations and warranties made by any then-remaining Term Loan Party in or A. Any Incremental Facilities incurred pursuant to the Loan Documents this clause (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warrantyf) shall be true and correct in all material respects incurred, if at all, (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respectsx) on no more than one occasion and as in no more than one tranche in the aggregate of the Incremental Facility Closing Date as if made Term Loans and (y) on and as of such dateor before August 7, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date2013.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Amended and Restated Credit Agreement (Encore Capital Group Inc)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (1) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments,” Term Loans”) or (2) one or more increases in the loans thereunderamount of the Revolving Credit Commitments (each such increase, the a “Revolving Commitment Increase”; and collectively with any Incremental Loans,” and a Lender making such loansTerm Loan, an “Incremental LenderLoan”); provided that:
(i) upon the effectiveness of any Incremental Amendment referred to below, no Event of Default shall exist; provided further that, with respect to any Incremental Amendment the primary purpose of which is to finance an acquisition or investment permitted by this Agreement, the requirement pursuant to this clause (i) shall be that no Event of Default under Section 8.01(a) or (f) shall exist at the time that any definitive documentation relating to such acquisition or permitted investment is executed; and
(ii) upon the effectiveness of any Incremental Amendment referred to below, the representations and warranties of the Borrower and each other Loan Party 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 Credit Extension; 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 further that, with respect to any Incremental LoansAmendment the primary purpose of which is to finance an acquisition or investment permitted by this Agreement, the requirement pursuant to this clause (ii) shall be that only the Specified Representations will be required to be made and that the representations and warranties of the entity to be acquired or in which such investment is to be made contained in the relevant agreement relating to such acquisition or investment that are material to the interest of the Lenders (but only to the extent that the Borrower or its applicable Subsidiary party to such agreement would have the right to terminate its obligations under such agreement or refuse to consummate such acquisition or investment) will be required to be made. Each tranche of Incremental Term Loans and each Revolving Commitment Increase shall be in an aggregate principal amount that is not less than $25,000,000 (provided that such amount may be less than $25,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the Incremental Term Loans and the Revolving Commitment Increases after the Closing Date shall not exceed an amount equal (A) $150,000,000 in the aggregate pursuant to this clause (A) or (B) at the sum of (x) Borrower’s option, up to an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (lessif, in the case of this clause (y)B) only, (x) with respect to any Revolving Commitment Increase or any Incremental Term Loan that will rank pari passu in right of security with the Revolving Credit Loans and the then outstanding Term Loans, the aggregate principal Senior Secured Leverage Ratio (calculated on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom and assuming for this purpose that the full amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided thatsuch Revolving Commitment Increase is fully drawn, but excluding, for the avoidance of doubt, all undrawn Letters of Credit and undrawn amounts under the amount available to the Borrower pursuant to this clause (y) shall be available at all times existing Revolving Credit Commitments; and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness amounts incurred under any clause (xA) as part of the same or a substantially concurrent financing transaction shall be excluded from such pro forma calculation)), is less than or equal to 3.5 to 1.0 (measured, in the case of any Incremental Amendment the primary purpose of which is to finance an acquisition or investment permitted by this Agreement, at the Borrower’s option, either (1) as of the date that any definitive documentation relating to such acquisition or permitted investment is executed or (2) as of the date such acquisition or permitted investment closes) and (y) with respect to any Incremental Term Loan that will rank junior in right of security with the Revolving Credit Loans and the Initial Term Loans or that will be unsecured, the Total Leverage Ratio (calculated on a Pro Forma Basis (including a pro forma application of the net proceeds therefrom, but excluding, for the avoidance of doubt, all undrawn Letters of Credit and undrawn amounts under the existing Revolving Credit Commitments; and provided, further, that amounts incurred under clause (A) as part of the same or a substantially concurrent financing transaction shall be excluded from such pro forma calculation)), is less than or equal to 5.75 to 1.0(measured, in the case of any Incremental Amendment the primary purpose of which is to finance an acquisition or investment permitted by this Agreement, at the Borrower’s option, either (1) as of the date that any definitive documentation relating to such acquisition or permitted investment is executed or (2) as of the date such acquisition or permitted investment closes) (the applicable amount under clause (A) or (yB), the “Available Incremental Amount”) above in such order as (it may elect in its sole discretion;
(ii) the being understood that Incremental Loans may be incurred under clause (B) of the Available Incremental Amount regardless of whether there is capacity under clause (A) thereof, and if both clauses (A) and (B) are available and the Borrower does not make an election, the Borrower will be deemed to have elected clause (B)). The Incremental Term Loans (a) shall rank pari passu or junior in right of payment and of security with the other Revolving Credit Loans under the Initial Revolving Credit Facility and Commitments hereunder;
the Initial Term Loans or shall be unsecured, (iiib) the Incremental Loans shall not mature earlier than the Initial Term Loan Maturity Date;
Date (ivc) shall be treated substantially the same as the Initial Term Loans, provided that (i) the terms and conditions applicable to Incremental Term Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity may be materially different from those of the Loans;
Initial Term Loans to the extent such differences (vother than interest rates, maturity dates and amortization schedule) subject are reasonably acceptable to clauses the Administrative Agent so long as, if such terms are materially more restrictive to the Borrower and its Subsidiaries than those of the Initial Term Loans (iiix) such Initial Term Loans also receive the benefit of such more restrictive terms or (y) any such provisions apply only after the Latest Maturity Date and (ivii) above, the interest rates and the amortization schedule applicable to any such the Incremental Term Loans shall be determined by the Borrower and the applicable lenders thereof; provided that the Incremental Lenders;
Term Loans shall not have a Weighted Average Life to Maturity shorter than the Initial Term Loans, and (vid) no Default may participate on a pro rata basis or Event less than pro rata basis (but, except as otherwise permitted by this Agreement, not on a greater than pro rata basis) in any mandatory prepayments of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default the Initial Term Loans under Section 8.1(a2.05(b)(i), (ii) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)iii)(A), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and specified in the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Term Loans or Revolving Commitment Increases. Incremental Term Loans may be made made, and Revolving Commitment Increases may be provided, by any existing Lender or any Additional Lender (provided it being understood that no existing Term Lender shall be obligated will have an obligation to make a portion of any Incremental Loan) Term Loan and no existing Revolving Credit Lender will have an obligation to provide a portion of any Revolving Commitment Increase), in each case on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all 2.14 and otherwise on terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory acceptable to the Administrative Agent; ) or by any other bank or other financial institution (any such other bank or other financial institution being called an “Additional Lender”), provided that that, the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s or Additional Lender’s making such Incremental Term Loans or providing such Revolving Commitment Increases if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans or Revolving Credit Commitments, as applicable, to such Lender or Additional Lender. Commitments in respect of Incremental Term Loans and Revolving Commitment Increases shall become Commitments (or in the case of a Revolving Commitment Increase to be provided by an existing Revolving Credit Lender, an increase in such Lender’s applicable Revolving Credit Commitment) under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such CommitmentIncremental Loan, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section includingSection. For avoidance of doubt, subject to clause (b) of other than the conditions set forth above in this Section 2.192.14, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of (and, in the case of any Incremental Amendment for an Incremental Term Loan, the borrowing under) any Incremental Amendment shall not be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of any of the other conditions set forth in Section 4.02 (it being understood that all references to “the date of such Credit Extension” or similar language in such Section 4.02 shall be deemed to refer to the effective date of such Incremental Amendment). The Borrower will use the proceeds of the Incremental Term Loans and Revolving Commitment Increases for any purpose not prohibited by this Agreement. Upon each increase in the Revolving Credit Commitments pursuant to Section 2.14, (x) each Revolving Credit Lender immediately prior to such increase will automatically and without further act be deemed to have assigned to each Lender providing a portion of the Revolving Commitment Increase (each a “Revolving Commitment Increase Lender”) in respect of such increase, and each such Revolving Commitment Increase Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Credit Lender’s participations hereunder in outstanding Letters of Credit and Swing Line Loans such that, after giving effect to each such deemed assignment and assumption of participations, the percentage of the aggregate outstanding (i) participations hereunder in Letters of Credit and (ii) participations hereunder in Swing Line Loans held by each Revolving Credit Lender (including each such Revolving Commitment Increase Lender) will equal the percentage of the aggregate Revolving Credit Commitments of all Revolving Credit Lenders represented by such Revolving Credit Lender’s Revolving Credit Commitment and (y) if, on the date of such increase, there are any Revolving Credit Loans outstanding, such Revolving Credit Loans shall on or prior to the effectiveness of such Revolving Commitment Increase be prepaid from the proceeds of additional Revolving Credit Loans made hereunder (reflecting such increase in Revolving Credit Commitments), which prepayment shall be accompanied by accrued interest on the Revolving Credit Loans being prepaid and any costs incurred by any Lender in accordance with Section 3.05. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence.
(db) Each With respect to any Incremental Term Loans made hereunder that rank pari passu in right of payment and of security with the representations and warranties made Initial Term Loans, if the All-In Yield applicable to such Incremental Term Loans exceeds by any Loan Party in or more than 50 basis points the then applicable All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to such Term Loans made under this Agreement, then the Applicable Rate (together with, as provided in the proviso below, the LIBOR or Base Rate “floor”) with respect to such Term Loans, is increased so as to cause the then applicable All-In Yield under this Agreement on such Term Loans, to equal the All-In Yield then applicable to the Incremental Term Loans, minus 50 basis points; provided that any increase in the All-In Yield on such Initial Term Loans due to the application of a LIBOR or Base Rate “floor” on any Incremental Term Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct effected solely through an increase in all material respects (except where or implementation of, as applicable) the LIBOR or Base Rate “floor” applicable to such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier dateTerm Loans.
(ec) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.12, 2.13 or 10.1 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more increases to the then-existing Term Loans or one or more additional tranches Classes of Term Loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that (i) unless the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any Person providing such Incremental Term Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transactionotherwise agrees, no Default or Event of Default under shall have occurred at the time of the incurrence of such Incremental Term Loans and be continuing or result therefrom, (ii) no Lender shall be obligated to provide any Incremental Term Loans as a result of any such request by the Borrower, and until such time, if any, as such Lender has agreed in writing in its sole discretion to provide an Incremental Term Loan and executed and delivered to the Administrative Agent an Incremental Amendment as provided below in this Section 8.1(a2.14, such Lender shall not be obligated to fund any Incremental Term Loans, (iii) each increase in then-existing Term Loans or additional Class of Incremental Term Loans shall be in an aggregate principal amount that is not less than $1,000,000 (or, if less, the amount of any Incremental Term Loan made in reliance on clause (i) or 8.1(fclause (ii) of the definition of Maximum Incremental Facilities Amount) (provided, that such amount may be less than $1,000,000 if such amount represents all remaining availability under the limit set forth in the next sentence or the Administrative Agent otherwise consents) and (iv) the Borrower shall have delivered to the Administrative Agent and each Lender a certificate executed by an Authorized Officer of the Borrower, certifying, to the best of such officer’s knowledge, (x) compliance with the requirements of preceding clause (i), the provisos of the second succeeding sentence, and of Section 6, and (y) the “Maximum Incremental Facilities Amount”, including the ratio set forth therein, if applicable, at the time of incurrence (together with calculations thereof in reasonable detail). Notwithstanding anything to the contrary herein, in no event shall exist on the aggregate amount of the Incremental Facility Closing Date Term Loans incurred at any time exceed the Maximum Incremental Facilities Amount as of such time. The Incremental Term Loans shall be secured by the Security Documents, and guaranteed under the Guaranty, on an equal and ratable basis with all other Obligations secured by the Security Documents and guaranteed under the Guaranty and shall be treated substantially the same as the existing Term Loans (in each case, including with respect to any Incremental Amendment entered into in connection therewith (mandatory and after giving effect to any Incremental Loans made thereundervoluntary prepayments); and
provided, however, that: (viii) with respect the interest rate applicable to any a Class of Incremental Amendment made on or prior Term Loans may differ from that applicable to the date that is eighteen (18) months after the Closing DateInitial Term Loans or any other Class of Incremental Term Loans, provided, however, if the all-in-yield “effective yield” applicable to a given Class of Incremental Term Loans (whether in the form which, for such purposes only, shall be deemed to take account of any then applicable interest rate marginsmargin, original issue discountinterest rate benchmark floors, recurring fees and all upfront or similar fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated amortized over the shorter of (x) the life of such loans and (y) four years) payable to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount all Lenders providing such Class of original issue discount), Incremental Term Loans but excluding exclusive of any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Class of Incremental LoanTerm Loans) determined as of the initial funding date for such Class of Incremental Term Loans exceeds the “effective yield” of any Initial Term Loans or any other Class of Incremental Term Loans (unless the terms of such Class provide that such Class is not subject to this provision) (determined on the same basis as provided above, which shall not with the comparative determination to be included and equated to made in the interest ratereasonable judgment of the Required Lenders consistent with generally accepted financial practice) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points 0.50% (the amount of such excess above 50 basis points over 0.50% being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for such Initial Term Loans or such other Class of Incremental Term Loans subject to a Yield Differential shall automatically be increased by the Yield Differential (including, as provided in the following proviso, the LIBO Rate or Base Rate floor) effective upon the making of the applicable Incremental Yield DifferentialTerm Loans; provided provided, that, in determining the interest rate margins applicable to the Incremental Term Loans and the Initial Term Loans or such other Class of Incremental Term Loans (x) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Initial Term Loans or any other Class of Incremental Term Loans in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity) and (y) if the Incremental Term Loans include an interest-rate a LIBO Rate floor or Base Rate floor greater than the interest rate LIBO Rate floor or Base Rate floor applicable to the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans, the differential between (I) such interest rate floors increased amount shall be equated to the interest rate margins margin for purposes of determining whether an increase to the Applicable Margin applicable interest margin under the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be required, but only required and (II) to the extent an increase in the interest rate LIBO Rate floor applicable to or Base Rate floor in the then-existing Initial Term Loans or any other then-existing Class of Incremental Term Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate then in effect thereunder, the LIBO Rate floor or Base Rate floor (but not the Applicable Margininterest rate margin) applicable to the Initial Term Loans or any other then-existing Class of Incremental Term Loans shall be increased by such increased amount; (ii) [reserved]; (iii) the final stated maturity date for a given Class of Incremental Term Loans may be on or later (but not sooner) than, the Initial Maturity Date; (iv) the amortization requirements for a given Class of Incremental Term Loans may differ, so long as the Weighted Average Life to Maturity of such Incremental Term Loans is no shorter than the remaining Weighted Average Life to Maturity applicable to the then outstanding Term Loans (except to the extent of nominal amortization for periods where amortization has been eliminated as a result of prepayment of the applicable Loans); (v) except as otherwise required or as permitted in clauses (i) through (iv) above, the other terms of a given Class of Incremental Term Loans shall be on terms and pursuant to documentation to be determined by the Borrower and the Lenders and/or Additional Lenders providing such differential between interest rate floorsIncremental Term Loans and shall, at all times prior to the Latest Maturity Date then in effect at the time of such incurrence, be substantially consistent with the terms of the Term Loans; provided, that such terms may differ if reasonably satisfactory to the Administrative Agent (at the direction of the Required Lenders); provided, further, that any such terms that are not substantially consistent with the then-existing Term Loans shall be no more favorable (taken as a whole) to the relevant Lenders under such Incremental Term Loans than those applicable to the then-existing Term Loans (taken as a whole) and (vi) the proceeds of Incremental Term Loans may be utilized by Holdings, the Borrower or any of their respective Subsidiaries as may be agreed by the Borrower and the Lenders providing the Incremental Term Loans, to the extent not otherwise prohibited by this Agreement. Notwithstanding the foregoing, Incremental Term Loans may have identical terms to any of the Term Loans and be treated as the same Class as any of such Term Loans.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Term Loans.
(c) . Incremental Term Loans may be made by any existing Lender (or any Additional existing Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity DateAffiliate) or by any other Person (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative natureany such other Person being called an “Additional Lender”); provided, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent (at the direction of the Required Lenders) shall have consented to such Additional Lender (such consent not to be unreasonably withheld, conditioned withheld or delayed) to and such Lender’s making such Incremental Loans if such consent would Additional Lender shall not be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Affiliated Lender. Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Credit Documents, executed by Holdings, the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent, and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions, board resolutions, officers’ certificates and/or reaffirmation agreements consistent with those delivered on the Closing Date under Section 5. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents (including, without limitation, any Mortgage modifications and related date-down endorsements to the Mortgage Policies) as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby2.14. The effectiveness occurrence of the effective date of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction on such date of each of the condition conditions set forth in clause Section 6 (dit being understood that all references to “the Borrowing Date” or similar language in such Section 6 shall be deemed to refer to the effective date of such Incremental Amendment) below and such other conditions as the parties thereto shall agree (the effective date of agree. No Lender shall be obligated to provide any such Incremental AmendmentTerm Loans, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreementunless it so agrees.
(dc) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 12.06 or 10.1 12.12 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Subordinated Term Loan Credit Agreement (J.Jill, Inc.)
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of term loans (the “New Term Loans”), which may be of the same Facility and Class as any existing Class of Term Loans (the commitments thereofa “Term Loan Increase”), a separate class of Term Loans (collectively with any Term Loan Increase, the “Incremental New Term Commitments,”) or a new revolving facility to be provided hereunder (“New Revolving Commitments” the loans thereunderand, together with any New Term Commitments, the “Incremental Loans,” and a Lender making such loans, an “Incremental LenderNew Commitments”); provided that (i) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below (or, in the case of a Permitted Acquisition or permitted Investment, on the date of the execution of (x) the definitive agreement in connection therewith and (y) any Commitment in respect of New Term Loans or New Revolving Commitments), no Event of Default (or, in the case of a Permitted Acquisition, a permitted Investment or the First Amendment Transactions, no Specified Default) shall exist and (ii) both immediately before and immediately after the effectiveness of any Incremental Amendment referred to below either (A) the condition precedent in Section 4.02(a) shall be satisfied (for this purpose without regard to the exclusion of the applicability of this condition to Borrowings pursuant to Incremental Amendments by operation of the lead-in paragraph of Section 4.02) or (B) with respect to any incurrence of Loans pursuant to an Incremental Amendment the purpose of which is to finance a Permitted Acquisition or permitted Investment or, if the Lenders party to such Incremental Amendment consent, the Specified Representations shall be true and correct in all material respects. Each tranche of New Term Loans or New Revolving Commitments shall be in an aggregate principal amount that is not less than C$15,000,000 or US$15,000,000, as applicable (provided that such amount may be less than C$15,000,000 or US$15,000,000 if such lesser amount is approved by the Administrative Agent or such amount represents all remaining availability under the limit set forth in the next sentence). Notwithstanding anything to the contrary herein, the aggregate principal amount of the New Term Loans or New Revolving Commitments, when added to the aggregate principal amount of any Incremental Equivalent Debt incurred or issued substantially simultaneously with the incurrence of such New Term Loans or New Revolving Commitments, shall not exceed the Available Incremental Amount at the time of incurrence or issuance thereof.
(b) The terms and provisions of New Commitments (and the Loans in respect of the foregoing), of any Class shall be as agreed between the Borrower and the lenders providing such New Commitments; provided, that:
(i) after giving effect to any such New Commitments shall (x) rank pari passu in right of payment and security with the Initial Term Loans made on the Closing Date, the 2018 Incremental Term Loans, the aggregate amount of Incremental 2020 Refinancing Term Loans, the 2023 Refinancing Term Loans and the 2023-A Refinancing Term Loans, (y) may not be (I) secured by any assets other than Collateral or (II) guaranteed by any Person other than a Guarantor,
(ii) (A) New Term Loans shall not exceed an amount (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness otherwise meeting the requirements of this clause (ii)) mature earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date and (B) New Revolving Commitments shall not mature and shall require no mandatory commitment reduction earlier than the Latest Maturity Date as in effect as of the applicable Incremental Facility Closing Date,
(iii) New Term Loans shall (other than in respect of any such New Term Loans constituting a bridge financing that converts into Indebtedness meeting the requirement of this clause (iii)) have a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for any Class of Term Loans outstanding as of the applicable Incremental Facility Closing Date,
(iv) the currency (with the consent of the Administrative Agent, not to be unreasonably withheld, if other than Canadian Dollars or U.S. Dollars), discounts, premiums, fees, optional prepayment and redemptions terms and, subject to clauses (ii) and (iii) above, the amortization schedule, in each case applicable to any New Term Loans or New Revolving Commitments shall be determined by the Borrower and the Lenders thereunder,
(v) the interest rate (including margin and floors) applicable to any New Term Loans or New Revolving Commitments will be determined by the Borrower and the Lenders providing such New Term Loans or New Revolving Commitments; provided that, if the All-In Yield applicable to such New Term Loans incurred prior to the first anniversary of the First Amendment Effective Date (or, with respect to the 2023 Refinancing Term Loans, the six-month anniversary of the Fourth Amendment Effective Date) pursuant to clause (a) of the Available Incremental Amount exceeds (i) the All-In Yield of the Initial Term Loans, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of the same currency at such time by more than 50 basis points, then the interest rate margins for the Initial Term Loans, the 2018 Incremental Term Loans or the 2023 Refinancing Term Loans, as applicable, of such same currency shall be increased to the extent necessary so that the All-In Yield of such Initial Term Loans, 2018 Incremental Term Loans or 2023 Refinancing Term Loans, as applicable, is equal to the sum All-In Yield of such New Term Loans minus 50 basis points; provided that any increase in All-In Yield to any Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, due to the application or imposition of a Term SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor on any New Term Loan shall be effected, at the Borrower’s option, (x) through an increase in (or implementation of, as applicable) any Term SOFR, Base Rate or Canadian Prime Rate or CDOR Rate floor applicable to such Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, (y) through an increase in the Applicable Rate for such Initial Term Loan, 2018 Incremental Term Loan or 2023 Refinancing Term Loan, as applicable, or (z) any combination of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below)above,
(vi) the New Term Loans may provide for the ability to participate on a pro rata basis, plus less than pro rata basis or greater than pro rata basis in any voluntary repayments or prepayments of principal of Term Loans hereunder and on a pro rata basis or less than a pro rata basis (y) $175,000,000 (less, but not greater than a pro rata basis except in the case of this clause a prepayment of such New Term Loans under Section 2.05(b)(iii)(B)) in any mandatory repayments or prepayments of principal of Term Loans hereunder it being agreed that the Borrower may, at its option, elect to prepay or terminate earlier maturing tranches on a greater than pro rata basis,
(yvii) the New Revolving Commitments shall contain borrowing, letter of credit issuance, repayment and termination of commitment procedures and other terms and conditions as determined by the Borrower and the Lenders providing such New Revolving Commitments,
(viii) [reserved], and
(ix) except (1) for covenants or other provisions applicable only to periods after the Latest Maturity Date of the Term Loans (which shall be deemed to be reasonably satisfactory to the Administrative Agent), and (2) pricing, fees, rate floors, premiums, optional payment and redemption terms (subject to the preceding clauses (i) through (viii)), the aggregate principal amount terms and conditions applicable to such New Revolving Commitments, New Term Commitments and New Term Loans may be different from those of Indebtedness incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided thatthe Term Loans, for the avoidance of doubt, the amount available to the extent (x) such differences are agreed upon by the Borrower pursuant and the Lenders in respect of such New Revolving Commitments or New Term Commitments, as applicable, and are reasonably acceptable to this clause the Administrative Agent or (y) reflect market terms and conditions at the time of incurrence or issuance thereof, as reasonably determined by the Borrower; provided that in the case of a Term Loan Increase, the terms, provisions and documentation of such Term Loan Increase shall be available at all times identical (other than with respect to upfront fees and OID and arrangement, structuring or similar fees payable in connection therewith) to the applicable Term Loans being increased, as existing on the respective Incremental Facility Closing Date; provided, further, that the terms of any New Term Commitments shall not be subject to include any financial maintenance covenant unless such financial maintenance covenant shall also apply for the ratio test described in foregoing clause benefit of the Term Commitments (xand any Term Loans made pursuant thereto); provided, further, that the Borrower terms of any New Revolving Commitment may incur such Indebtedness under any clause (x) include a financial maintenance covenant or (y) above in such order related equity cure so long as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans Administrative Agent shall have a Weighted Average Life been given prompt written notice thereof and this Agreement is amended to Maturity no shorter than include such financial maintenance covenant or related equity cure for the Weighted Average Life to Maturity benefit of the Loans;
each Facility (v) subject to clauses (iii) and (iv) aboveprovided, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (orfurther, in connection with a Limited Condition Transactionhowever, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than applicable new financial maintenance covenant is a “springing” financial maintenance covenant for the interest rate floor benefit of such New Revolving Commitment or covenant only applicable to to, or for the Loansbenefit of, the differential between such interest rate floors New Revolving Commitment, such financial maintenance covenant shall be equated to automatically included in this Agreement only for the interest rate margins benefit of each New Revolving Commitment hereunder (and not for purposes the benefit of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floorsany other Facility hereunder)).
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant New Term Loans or New Revolving Commitment and the date on which the Borrower proposes that the same shall be effective (each, an “Incremental Loans.
(c) Incremental Amount Date”). New Term Loans or New Revolving Commitments may be made by any existing Lender or any Additional (but no existing Lender (provided that no Lender including the Administrative Agent in its capacity as an existing Lender) shall be obligated have any obligation to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental New Term Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Dateor New Revolving Commitments) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agentby any Additional Lender; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheldconditioned, conditioned withheld or delayed) to such Lender’s or Additional Lender’s making such Incremental New Term Loans or New Revolving Commitments if such consent would be required under Section 10.6(b10.07(b) for an assignment of Loans to such Lender or Additional Lender; provided, further, that no Additional Lender that is an Affiliated Lender or an Affiliated Debt Fund shall be permitted to make or provide New Term Loans or New Revolving Commitments, unless the requirements of Sections 10.07(h) and (i) (as applicable) shall be met, assuming that the making or provision of such New Term Loans or New Revolving Commitments is an assignment of such New Term Loans or New Revolving Commitments to such Person. Commitments in respect of Incremental New Term Loans or New Revolving Commitments shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each existing Lender agreeing to provide such Commitment, if any, each Additional LenderLender agreeing to provide such Commitment, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including2.14 and, subject in the case of any Incremental Amendment with respect to clause (b) New Revolving Commitments, any other terms, conditions and mechanics customary for a revolving facility of this Section 2.19, amendments the type being provided pursuant to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected therebyNew Revolving Commitments). The effectiveness of (and, in the case of any Incremental Amendment for New Term Loans, any Credit Extension under) any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of on the condition set forth in clause date thereof (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendmenteach, an “Incremental Facility Closing Date”) of each of the conditions as the Borrower and the Lenders providing such Commitment shall agree, including, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of (a) (i) customary officer’s certificates and board resolutions and (ii) customary opinions of counsel to the Loan Parties, in each case, consistent with those delivered on the Closing Date (other than changes to 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), (b) a First Lien Intercreditor Agreement or Junior Lien Intercreditor Agreement, as appropriate, and (c) supplemental or reaffirmation agreements and/or such amendments to the Collateral Documents and/or the Guaranty as may be reasonably requested by the Administrative Agent (including Mortgage amendments) in order to ensure that any New Commitment are provided with the benefit of the applicable Loan Documents. The Borrower will shall use the proceeds (if any) of the Incremental New Term Loans or New Revolving Commitments for any purpose not prohibited by this Agreement. No Lender shall be obligated to commit to provide any New Term Loans or New Revolving Commitments unless it so agrees.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date[reserved].
(e) Notwithstanding anything to the contrary herein, Any New Term Commitment may be designated a separate Class of Term Loans for all purposes of this Agreement. This Section 2.19 2.14 shall supersede any provisions in Sections 2.12 Section 2.05, Section 2.12, Section 2.13, Section 8.03 or 10.1 Section 10.01 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Incremental Credit Extensions. (a)
(a) The Borrower BorrowersBorrower may, at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments,” ”, the loans thereunder, the “Incremental Loans,” ”, and a Lender making such loans, an “Incremental Lender”); it being understood that Amendment No. 1 constitutesand Amendment No. 2 each constitute an “Incremental Amendment” with respect to the establishment of the Term B-1 Incremental2 Commitments as “Incremental Commitments” and the Term B-12 Loans as “Incremental Loans”; provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 4.235 to 1.00 (without giving effect to any contemporaneous borrowing under clause (yz) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $175,000,000 17285,000,000 (less, in the case of this clause (yz), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y6.1(b)(vi)(I)(c) or Section 6.1(b)(ii)(y6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower BorrowersBorrower pursuant to this clause (yz) (A) shall not be reduced by the Term B-1 Loans or the Term B-2 Loans and (B) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower BorrowersBorrower may incur such Indebtedness under any clause (x), (y) or (yz) above in such order as it theyit may elect in its theirits sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower BorrowersBorrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a), or 8.1(f), 8.2(a) or 8.1(f8.2(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing DateAmendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower BorrowersBorrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided thatprovided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors; provided, further, that any Incremental Facility that constitutes fixed-rate Indebtedness shall be swapped to a floating rate on a customary matched-maturity basis.
(b) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share pro rata share of such prepayments) and Guarantees. Each notice from the Company Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowersBorrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowerBorrowersBorrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower BorrowersBorrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower BorrowersBorrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Incremental Credit Extensions. (a) The Borrower may, may at any time or from time to time after the Closing Syndication Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver make a copy of such notice available to each of the Lenders), request one or more additional tranches or, in consultation with the Administrative Agent, additions to an existing tranche of Loans term loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
that (i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet making of such Incremental Term Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness all Incremental Term Loans incurred under Section 6.1(b)(vi)(y) or Section 6.1(b)(ii)(y)); provided that, for the avoidance of doubt, the amount available to the Borrower pursuant to this Section 2.19 (together with any Incremental Equivalent Debt incurred pursuant to Section 7.03(s) after the Closing Date, any First Lien Incremental Loans and any First Lien Incremental Equivalent Debt) shall not exceed (x) $100,000,000 plus (y) an unlimited additional amount, so long as on a Pro Forma Basis after the incurrence of such Incremental Term Loans, the Senior Secured Leverage Ratio as of the last day of the most recently ended Test Period does not exceed 7.35:1.00 (it being understood that any Incremental Loan may be incurred under clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing regardless of whether there is capacity under clause (x)); provided, further, that the Borrower may incur such Indebtedness under shall have delivered a certificate of a Responsible Officer to the effect set forth above, as applicable, together with reasonably detailed calculations demonstrating compliance with the above (which calculations shall, if made as of the last day of any clause (xfiscal quarter of the Borrower for which the Borrower has not delivered to the Administrative Agent the financial statements and Compliance Certificate required to be delivered by Section 6.01(a) or 6.01(b) and Section 6.02(a), respectively, be accompanied by a reasonably detailed calculation of Consolidated EBITDA for the relevant period); provided, further, that for purposes of the calculation of the Senior Secured Leverage Ratio used in determining the availability of Incremental Term Loans under this Section 2.19(a), any cash proceeds of any Incremental Term Loans will not be netted for purposes of determining compliance with the Senior Secured Leverage Ratio. Each tranche of Incremental Term Loans shall be in an aggregate principal amount that is not less than $5,000,000 and shall be in an increment of $1,000,000 (y) above provided that such amount may be less than $5,000,000 if such amount represents all remaining availability under the limit set forth in such order as it may elect in its sole discretion;the preceding sentence).
(iib) the The following terms shall apply to any Incremental Term Loans established pursuant to an Incremental Amendment: (i) such Incremental Term Loans (A) shall rank pari passu in right of payment with all other Term Loans, (B) shall be secured by the Collateral on a pari passu or junior basis with all other Term Loans, (C) shall not be guaranteed by any person other than a Guarantor and (D) shall not be secured by any assets other than the Collateral, (ii) the maturity date of security with such Incremental Term Loans shall not be earlier than the other Loans and Commitments hereunder;
Original Term Loan Maturity Date, (iii) the Incremental Loans shall not mature earlier than the Maturity Date;
[Reserved], (iv) any Incremental Term Loans may participate on a pro rata basis or on a less than pro rata basis (but not on a greater than pro rata basis) in any voluntary or mandatory prepayments hereunder, as specified in the applicable Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
Amendment, (v) subject to clauses (iii) and (iv) above, the interest rates and the no scheduled amortization schedule shall be applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
Term Loan, (vi) no Default or Event of Default (or, the applicable all-in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect yield relating to any Incremental Amendment entered into in connection therewith (and after giving effect Term Loans incurred pursuant to any Incremental Loans made thereunder); and
(vii) with respect to any such Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing Dateeach facility thereunder, an “Incremental Facility”), if the all-in-yield (whether in the form of interest rate marginssuch Incremental Term Loans are secured on a pari passu basis with all other Term Loans, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds shall not exceed the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject applicable to the first proviso Initial Term Loans by more than 0.50% per annum unless the all-in this clause yield applicable to the Initial Term Loans is increased so that the all-in yield applicable to the applicable Incremental Facility does not exceed the all-in yield applicable to the Initial Term Loans by more than 0.50% per annum; provided that, in determining the all-in yield applicable to the Initial Term Loans and the applicable Incremental Facility, (vii))), A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders of the Initial Term Loans or the applicable Incremental Facility in the primary syndication thereof shall be included (with OID being equated to interest based on an assumed four-year life to maturity or, if shorterless, the remaining life to maturity thereofof the applicable Incremental Facility), (B) and upfront fees (which structuring, arrangement, commitment or other similar fees, in each case not shared with all lenders providing the Initial Term Loans or the applicable Incremental Facility, shall be deemed excluded and (C) if the Adjusted LIBO Rate in respect of such Incremental Facility includes a floor in excess of 1.00%, or the Alternate Base Rate in respect of such Incremental Facility includes a floor in excess of 2.00%, such excess shall be equated to constitute like amount interest margin for purposes of original issue discount)determining any increase to the applicable all-in yield under the Initial Term Loans and any increase in the all-in yield applicable to the Initial Term Loans required due to the application of such floor on any Incremental Facility shall be effected solely through an increase in (or implementation of, but excluding as applicable) such floor in respect of the Initial Term Loans, (vii) subject to clause (vi) above, any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing any such Incremental Term Loan shall be determined by the Borrower and the arrangers providing for such Incremental Term Loan and (viii) except as otherwise required or permitted above, all other terms of such Incremental Term Loans, if not consistent with the terms of the existing Term Loan, which as the case may be, shall not be included and equated reasonably satisfactory to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective Administrative Agent (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in any financial maintenance covenant is added for the interest rate floor applicable benefit of any Incremental Term Loan, no consent shall be required from the Administrative Agent or any Lender to the Loans would cause an increase in extent that such financial maintenance covenant is also added for the Applicable Margin applicable benefit of each Term Loan); provided that any Incremental Term Loan Facility secured on a junior basis to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the all other Term Loans shall be increased subject to the extent of such differential between interest rate floorsIntercreditor Agreement and the Third Lien Intercreditor Agreement.
(bc) Except as set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to this Section 2.19(a) 2.19 shall set forth (i) the requested amount and proposed terms of the relevant Incremental Loans.
Term Loans and (cii) the date on which the relevant increase is requested to become effective. Incremental Term Loans may be made by any existing Lender (but no existing Lender shall have any obligation to make any Incremental Term Loan, except to the extent that it has agreed to do so pursuant to an Incremental Amendment) or by any other Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) Term Lenders or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s Additional Lenders making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional LenderTerm Loans, collectively, the “Incremental Lenders”). Commitments in respect of Incremental Term Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Incremental Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. Subject to this Section 2.19, the Incremental Amendment shall be on the terms and pursuant to documentation to be determined by the Borrower and the Incremental Lenders providing the relevant Incremental Terms Loans. The effectiveness of any Incremental Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section 4.01 (and for purposes thereof, the making of the Incremental Term Loans shall be deemed to be a Request for Credit Extension) and, to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of customary legal opinions, board resolutions and officers’ certificates, in each case consistent with those delivered on the Closing Date under Section 4.02 (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 customary reaffirmation agreements; provided that, with respect to any incurrence of an Incremental Facility to finance a Permitted Acquisition or other Investment permitted by this Agreement, the conditions to the availability or borrowing of such Incremental Facility set forth in clauses (a) and (b) of Section 4.01 may be waived by the Lenders holding a majority in principal amount under such Incremental Facility without the consent of any other Lender; provided, further, that the accuracy of the Specified Representations may not be waived without the consent of the Required Lenders. The Borrower will use the proceeds of the Incremental Term Loans for any purpose not prohibited by this Agreement. No Lender shall be obligated to provide any Incremental Term Loans unless it so agrees.
(d) Any Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section includingterms thereof, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations terms are permitted under this Section 2.19. Notwithstanding the foregoing, each of the Administrative Agent and warranties expressly relate to an earlier date, in which case such representations and warranties the Collateral Agent shall have been true and correct in all material respects the right (except where but not the obligation) to seek the advice or concurrence of the Required Lenders with respect to any matter contemplated by this Section 2.19 and, if either the Administrative Agent or the Collateral Agent seeks such representations and warranties are already qualified by materialityadvice or concurrence, in which case such representation and warranty it shall be accurate permitted to enter into such amendments with the Borrower in accordance with any instructions actually received by such Required Lenders and shall also be entitled to refrain from entering into such amendments with the Borrower unless and until it shall have received such advice or concurrence; provided, however, that whether or not there has been a request by the Administrative Agent or the Collateral Agent for any such advice or concurrence, all respects) as of such earlier dateamendments entered into with the Borrower by the Administrative Agent or the Collateral Agent hereunder shall be binding and conclusive on the Lenders.
(e) Notwithstanding anything to the contrary herein, this This Section 2.19 shall supersede any provisions in Sections 2.12 Section 2.14, 2.15 or 10.1 10.08 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendmentcontrary.
Appears in 1 contract
Sources: Second Lien Credit Agreement (Surgery Partners, Inc.)
Incremental Credit Extensions. (a) The Borrower Borrowers may, at any time or from time to time after the Closing Date, by notice from the Company Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request one or more additional tranches of Loans (the commitments thereof, the “Incremental Commitments,” ”, the loans thereunder, the “Incremental Loans,” ”, and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Total Net First Lien Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b), as the case may be, have been or were required to have been delivered does not exceed 3.00 4.25 to 1.00 (without giving effect to any contemporaneous borrowing under clause (yz) below), plus (y) the amount of all prior voluntary prepayments of the Loans, Incremental Loans and Indebtedness incurred pursuant to Section 6.1(b)(vi)(I) that is secured by the Collateral on a pari passu basis with the Obligations prior to such time, plus (z) $175,000,000 (less, in the case of this clause (yz), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y6.1(b)(vi)(I)(c) or Section 6.1(b)(ii)(y6.1(b)(vi)(II)(c)); provided that, for the avoidance of doubt, the amount available to the Borrower Borrowers pursuant to this clause (yz) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower Borrowers may incur such Indebtedness under any clause (x), (y) or (yz) above in such order as it they may elect in its their sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower Borrowers and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a), 8.1(f), 8.2(a) or 8.1(f8.2(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and after giving effect to any Incremental Loans made thereunder); and
(vii) with respect to any Incremental Amendment made on or prior to the date that is eighteen (18) months after the Closing DateAmendment, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower Borrowers and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore theretofor become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount OID applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness of such Incremental Amendment, the Applicable Margin then in effect for Loans shall automatically be increased by the Incremental Yield Differential; provided thatprovided, that if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors shall be equated to the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as set forth in Section 2.19(a); provided, the further, that any Incremental Loans Facility that constitutes fixed-rate Indebtedness shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree swapped to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loansfloating rate on a customary matched-maturity basis.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary and the Borrower and the Administrative Agent may amend Section 2.12 to implement any Incremental Amendment.
Appears in 1 contract
Sources: Term Loan Credit Agreement (JELD-WEN Holding, Inc.)
Incremental Credit Extensions. (a) The Borrower a)Parent may, at any time or from time to time after the Closing Date, by notice from the Borrower to the Administrative Agent (whereupon the Administrative Agent shall promptly deliver a copy to each of the Lenders), request (a) one or more additional tranches of Loans term loans (the commitments thereof, the “Incremental Commitments,” the loans thereunder, the “Incremental Term Loans,” and a Lender making such loans, an “Incremental Lender”); provided that:
(i) after giving effect to any such Incremental Loans, the aggregate amount of Incremental Loans shall not exceed an amount equal to the sum of (x) an unlimited amount at any time so long as the Secured Net Leverage Ratio on a Pro Forma Basis (but without giving effect to the cash proceeds remaining on the balance sheet of such Incremental Loans) as of the most recently completed period of four consecutive fiscal quarters for which the financial statements and certificates required by Section 5.1(a) or (b) one or more increases in the amount of the Revolving Credit Commitments of any Class (each such increase, a “Revolving Commitment Increase”); provided, that upon the effectiveness of any Incremental Amendment referred to below and at the time that any such Incremental Term Loan is made (and after giving effect thereto), as (i) no Event of Default shall exist; provided that, with respect to any Incremental Term Loans the case may beproceeds of which are to be used primarily to fund a Permitted Acquisition or other acquisition not prohibited hereunder the consummation of which is not conditioned on the availability of third-party financing substantially concurrently upon the receipt thereof, have been the absence of an Event of Default (other than a Specified Event of Default with respect to any Borrower) shall not constitute a condition to the issuance or were required to incurrence of such Incremental Term Loans, and (ii) Parent and its Restricted Subsidiaries shall be in Pro Forma Compliance with Section 7.09 for the most recently ended Test Period for which financial statements have been delivered does not exceed 3.00 pursuant to 1.00 (without giving effect to any contemporaneous borrowing under clause (y) below), plus (y) $175,000,000 (less, in the case of this clause (y), the aggregate principal amount of Indebtedness incurred under Section 6.1(b)(vi)(y) 6.01 or Section 6.1(b)(ii)(y)); provided that6.01(b) (which, for the avoidance of doubt, the amount available to the Borrower pursuant to this clause (y) shall be available at all times and shall not be subject to the ratio test described in foregoing clause (x); provided, further, that the Borrower may incur such Indebtedness under any clause (x) or (y) above in such order as it may elect in its sole discretion;
(ii) the Incremental Loans shall rank pari passu in right of payment and of security with the other Loans and Commitments hereunder;
(iii) the Incremental Loans shall not mature earlier than the Maturity Date;
(iv) the Incremental Loans shall have a Weighted Average Life to Maturity no shorter than the Weighted Average Life to Maturity of the Loans;
(v) subject to clauses (iii) and (iv) above, the interest rates and the amortization schedule applicable to any such Incremental Loans shall be determined by the Borrower and the applicable Incremental Lenders;
(vi) no Default or Event of Default (or, in connection with a Limited Condition Transaction, no Default or Event of Default under Section 8.1(a) or 8.1(f)) shall exist on the Incremental Facility Closing Date with respect to any Incremental Amendment entered into in connection therewith (and calculated after giving effect to any Incremental Loans made thereunder); and
(vii) with respect acquisition consummated concurrently therewith or to any Incremental Amendment made on or prior to be consummated using the date that is eighteen (18) months after the Closing Date, if the all-in-yield (whether in the form of interest rate margins, original issue discount, upfront fees or interest rate floors (subject to the first proviso in this clause (vii)), with such increased amount being equated to interest margin for purposes of determining any increase to the Applicable Margin under the Facility) with respect to the Incremental Loans made thereunder (as determined by the Borrower and the applicable Incremental Lenders) exceeds the all-in yield (after giving effect to interest rate margins (including the interest rate floors (subject to the first proviso in this clause (vii))), original issue discount (equated to interest based on an assumed four-year life to maturity or, if shorter, the remaining life to maturity thereof) and upfront fees (which shall be deemed to constitute like amount of original issue discount), but excluding any arrangement, structuring or other fees payable in connection therewith that are not shared with all Lenders providing such Incremental Loan, which shall not be included and equated to the interest rate) with respect to the existing Loans, after giving effect to any increase or repricing thereof that has theretofore become effective (it being understood that if any such repricing was effected as a refinancing tranche, the original issue discount applicable to the refinanced loans shall be taken into account), by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Incremental Yield Differential”), then, upon the effectiveness proceeds of such Incremental AmendmentTerm Loans or Revolving Commitment Increase, the Applicable Margin then in effect for as applicable, and calculated assuming any Revolving Commitment Increase is fully drawn). Each tranche of Incremental Term Loans shall automatically be increased by the Incremental Yield Differential; provided that, if the Incremental Loans include an interest-rate floor greater than the interest rate floor applicable to the Loans, the differential between such interest rate floors and each Revolving Commitment Increase shall be equated to in an aggregate principal amount that is not less than $50 million (provided, that such amount may be less than $50 million if such amount represents all remaining availability under the interest rate margins for purposes of determining whether an increase to the Applicable Margin shall be required, but only to the extent an increase in the interest rate floor applicable to the Loans would cause an increase in the Applicable Margin applicable to such Loans, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Loans shall be increased to the extent of such differential between interest rate floors.
(b) Except as limit set forth in Section 2.19(a), the Incremental Loans shall be treated substantially the same as the Loans, including with respect to mandatory and voluntary prepayments (unless the applicable Incremental Lenders agree to a less than Pro Rata Share of such prepayments) and Guarantees. Each notice from the Borrower to the Administrative Agent pursuant to Section 2.19(a) shall set forth the requested amount and proposed terms of the relevant Incremental Loans.
(c) Incremental Loans may be made by any existing Lender or any Additional Lender (provided that no Lender shall be obligated to make a portion of any Incremental Loan) on terms permitted in this Section 2.19 and, to the extent not permitted in this Section 2.19, all terms and documentation with respect to any Incremental Loan which (i) are materially more restrictive on the Group Members, taken as a whole, than those with respect to the Loans (but excluding any terms applicable after the Maturity Date) or (ii) relate to provisions of a mechanical (including with respect to the Collateral and currency mechanics) or administrative nature, shall in each case be reasonably satisfactory to the Administrative Agent; provided that the Administrative Agent shall have consented (such consent not to be unreasonably withheld, conditioned or delayed) to such Lender’s making such Incremental Loans if such consent would be required under Section 10.6(b) for an assignment of Loans to such Lender or Additional Lender. Commitments in respect of Incremental Loans shall become Commitments under this Agreement pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Lender agreeing to provide such Commitment, if any, each Additional Lender, if any, and the Administrative Agent. The Incremental Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section including, subject to clause (b) of this Section 2.19, amendments to Sections 2.3(a) and 2.5(b) that do not adversely affect the Lenders affected thereby. The effectiveness of any Incremental Amendment shall be (unless waived or not required by the Incremental Lenders in connection with a Limited Condition Transaction) subject to the satisfaction of the condition set forth in clause (d) below and such other conditions as the parties thereto shall agree (the effective date of any such Incremental Amendment, an “Incremental Facility Closing Date”next sentence). The Borrower will use the proceeds of the Incremental Loans for any purpose not prohibited by this Agreement.
(d) Each of the representations and warranties made by any Loan Party in or pursuant to the Loan Documents (or, in connection with a Limited Condition Transaction, each customary “SunGard” representation and warranty) shall be true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) on and as of the Incremental Facility Closing Date as if made on and as of such date, except to the extent such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects (except where such representations and warranties are already qualified by materiality, in which case such representation and warranty shall be accurate in all respects) as of such earlier date.
(e) Notwithstanding anything to the contrary herein, this Section 2.19 shall supersede any provisions in Sections 2.12 or 10.1 to the contrary aggregate amount of the Incremental Term Loans and the Borrower and Revolving Commitment Increases (other than, for the Administrative Agent may amend avoidance of doubt, those established in respect of Extended Term Loans or Extension Revolving Credit Commitments pursuant to Section 2.12 to implement any 2.16) shall not exceed the Maximum Incremental AmendmentFacilities Amount.
Appears in 1 contract
Sources: Credit Agreement (Uniti Group Inc.)