Incremental Increases. (a) At any time after the Closing Date, Borrower may by written notice to Agent (x) request the establishment of one or more incremental term loan commitments (each, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment (each, a “Revolving Credit Commitment Increase” and, together with any Incremental Term Loan Commitment and Incremental Term Loan, the “Incremental Increases”); provided that (i) the total aggregate principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based on the original principal amount thereof) and (ii) the total aggregate amount for each Incremental Increase shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Incremental Effective Date”) on which Borrower proposes that any Incremental Increase shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, to provide such Incremental Increase. (b) Any Incremental Increase shall become effective as of such Incremental Effective Date; provided that: (i) no Default or Event of Default shall exist on such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of funding; (ii) each of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders; (iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments); (iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans; (v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date; (vi) the Agent and the Lenders shall have received from Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; (vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion; (viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction; (ix) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, shall be reasonably satisfactory to Agent, Borrower and the applicable Incremental Lenders; and (x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility. (c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility. (d) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment). (e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which 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 Agent and Borrower, to effect the provisions of this Section 2.20, and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf).
Appears in 2 contracts
Sources: Credit Agreement (Quanex Building Products CORP), Credit Agreement (Quanex Building Products CORP)
Incremental Increases. (a) At any time after Upon the Closing Dateterms and subject to the conditions of, Borrower may by written notice and in reliance upon the representations and warranties made under this Amendment, (i) each Incremental Term Loan Lender hereby severally agrees (A) that it is a Term Loan Lender under the Credit Agreement with respect to Agent (x) request the establishment of one or more incremental term loan commitments (each, an “its Incremental Term Loan Commitment”, and (B) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”) and/or (y) request one or more increases Loan in the Revolving Credit Commitment (each, a “Revolving Credit Commitment Increase” and, together with any principal amount equal to its Incremental Term Loan Commitment and Incremental Term Loan, to the “Incremental Increases”); provided that (i) the total aggregate principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based US Borrower in a single draw on the original principal amount thereof) First Amendment Effective Date and (ii) the total aggregate amount for each Incremental Increase shall Revolving Credit Lender hereby severally agrees (A) that it is a Revolving Credit Lender under the Credit Agreement with respect to its Revolving Credit Commitment and (B) to make Revolving Credit Loans from time to time from the First Amendment Effective Date through, but not be less than a minimum principal amount of $10,000,000 or, if lessincluding, the remaining amount permitted pursuant to Revolving Credit Maturity Date in accordance with the foregoing clause (i). Each such notice shall specify terms of Section 2.3 of the date (each, an “Incremental Effective Date”) on which Borrower proposes that any Incremental Increase shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, to provide such Incremental IncreaseCredit Agreement.
(b) Any Incremental Increase shall become effective as of such Incremental Effective Date; provided that:
(i) no Default or Event of Default shall exist on such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any The Incremental Term Loan Commitment the primary purpose of which is shall be subject to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time of the signing (as opposed mandatory prepayments pursuant to closingSection 4.4(b) of the acquisition agreement with respect thereto as agreed to by Borrower Credit Agreement (ratably between the Term Loan and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at Term Loan) with such prepayment to be applied to the time of funding;
(ii) each scheduled principal payments of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose on a pro rata basis according to the amount of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;each such scheduled payment.
(iiic) The Incremental Term Loans shall bear interest in accordance with Section 5.1 of the Credit Agreement at the same rate (including Applicable Rate) as the Term Loans.
(d) The proceeds of any the Incremental Increase Term Loans shall be used for general corporate purposes of the US Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);Subsidiaries.
(ive) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Agent and the Lenders shall have received from Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;
(vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction;
(ix) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, Except to the extent not consistent with otherwise set forth herein, the terms and conditions applicable to the Revolving Credit Facility, shall be reasonably satisfactory to Agent, Borrower and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility.
(c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject shall be the same as the terms and conditions applicable to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and Loans. Amounts of the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall that are repaid or prepaid may not be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facilityreborrowed.
(df) On any Each Incremental Term Loan made on the First Amendment Effective Date on shall be deemed to be an “Incremental Term Loan” for all purposes of the Loan Documents. Nothing in this Amendment shall affect the amount or terms of the Initial Term Loans which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent were funded on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment)Closing Date.
(e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which 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 Agent and Borrower, to effect the provisions of this Section 2.20, and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf).
Appears in 1 contract
Incremental Increases. (a) At any time after the Closing Date, Borrower may by written notice to Agent (x) elect to increase the principal amount of any outstanding Term Loan and/or request the establishment of one or more incremental term loan commitments (each, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment (each, a “Revolving Credit Commitment Increase” and, together with any Incremental Term Loan Commitment and Incremental Term Loan, the “Incremental Increases”); provided that (i) the total aggregate principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based on the original principal amount thereof) and (ii) the total aggregate amount for each Incremental Increase shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Incremental Effective Date”) on which Borrower proposes that any Incremental Increase shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, to provide such Incremental Increase.
(b) Any Incremental Increase shall become effective as of such Incremental Effective Date; provided that:
(i) no Default or Event of Default shall exist on such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of funding;
(ii) each of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Agent and the Lenders shall have received from Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;
(vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction;
(ix) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, shall be reasonably satisfactory to Agent, Borrower and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility.
(c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(d) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment).
(e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which 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 Agent and Borrower, to effect the provisions of this Section 2.20, and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf).
Appears in 1 contract
Incremental Increases. (a) At any time after the Closing DateSubject to Section 2.17(b), Borrower may by written notice to Agent request (xi) request the establishment of one or more incremental term loan commitments (each, each an “Incremental Term Loan Commitment”) to make one or more additional term loans loans, including a borrowing of an additional term loan the principal of which will be added to the outstanding principal amount of the existing Class of outstanding Term Loans with the latest scheduled maturity date (any such additional term loan, an “Incremental Term Loan”) ), and/or (yi) request one or more increases in the Aggregate Revolving Loan Commitment (each an “Incremental Revolving Credit Commitment (each, a “Revolving Credit Commitment Facility Increase” ”) and, together with any the Incremental Term Loan Commitment Commitments and Incremental Term LoanLoans, the “Incremental Increases”); provided that (i) the total aggregate principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based on the original principal amount thereof) and (ii) the total aggregate amount for then in effect, in each Incremental Increase shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Incremental Effective Date”) on which Borrower proposes that any Incremental Increase shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed to case by Agent in its sole discretion) after the date on which such notice is delivered to Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide entering into an Incremental Increase Commitment Agreement with one or more banks or financial institutions (any such Person, each an “Incremental Lender”). Any proposed , pursuant to which each such Incremental Term Loan Commitment and/or Incremental Lender’s Revolving Loan Commitment shall be increased or, if such Incremental Lender offered or approached was not a Lender prior to provide all or a portion entering such Incremental Commitment Agreement, pursuant to which such Incremental Lender makes and is allocated an Incremental Term Loan Commitment and/or Revolving Loan Commitment, as the case may be. The Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of any Incremental Increase may elect or decline, in its sole discretion, to provide such Incremental Increase. The Agent shall promptly notify the Borrower and the Incremental Lenders of the final allocation of such Incremental Increases (limited in the case of the Incremental Lenders to their own respective commitments in respect thereof) and the Increase Effective Date. Notwithstanding anything herein to the contrary, no Lender shall have any obligation to agree to increase its Commitment, or to provide a Commitment, pursuant to this Section and any election to do so shall be in the sole discretion of such Lender.
(b) Any Incremental Increase shall become effective as pursuant to this Section 2.17 will be subject to the satisfaction of such Incremental Effective Date; provided thatthe following conditions:
(i) no Default or Event in the case of Default shall exist on each Incremental Term Loan:
(A) the stated maturity of any such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment shall not be earlier than the primary purpose latest scheduled maturity date of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time any Term Loans in effect as of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower Increase Effective Date, and the applicable Incremental Lenders; provided further that no Event Weighted Average Life to Maturity of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of funding;
(ii) each of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose shall not be shorter than the remaining Weighted Average Life to Maturity of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other such latest maturing Term Loans;
(vB) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Agent pricing grid, fees, and the Lenders shall have received from Borrower a Compliance Certificate demonstratingamortization schedule, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as if applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;
(vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any for such Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;and the Borrower; and
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction;
(ixC) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facilityany existing Incremental Term Loan or Incremental Term Loan Commitment, shall be reasonably satisfactory to Agentthe Agent and the Borrower, and such applicable Incremental Lenders;
(ii) each Incremental Revolving Credit Facility Increase shall have the same terms and maturity as, and be a part of, the Revolving Loan Commitments; provided that any upfront fees payable by the Borrower to the Lenders under any Incremental Revolving Credit Facility Increases, and the Pricing Schedule, Commitment Fees, and interest rate floor applicable to any Incremental Revolving Credit Facility Increase may differ from those applicable to the existing Revolving Loan Commitments; and
(iii) in the case of each Incremental Increase (but subject to Section 1.9 in the case of an Incremental Increase incurred to finance a substantially concurrent Limited Condition Acquisition):
(A) no Event of Default has occurred and is continuing;
(B) all of the representations and warranties set forth in Article V shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Change, in all respects) as of such Increase Effective Date, or if such representation speaks as of an earlier date, as of such earlier date;
(C) Borrower and each Incremental Lender shall have executed and delivered an Incremental Commitment Agreement and each Incremental Lender, if not already a Lender, shall have delivered to Agent a completed administrative questionnaire;
(D) Agent shall have delivered its prior written consent, which consent shall not be unreasonably withheld, to each such Incremental Lender, unless such Incremental Lender is already a Lender or an Affiliate of a Lender;
(E) each such increase shall be at least $5,000,000;
(F) the aggregate of all Incremental Increases effected after the Closing Date pursuant to this Section 2.17 shall not exceed the greater of (A) $500,000,000 and (B) 1.0x Consolidated EBITDA (as set forth in the compliance certificate most recently delivered by Borrower pursuant to Section 6.2(c) prior to the date of the relevant Incremental Increase), without the approval of the Required Lenders;
(G) if any SOFR Loans are outstanding on the Increase Effective Date, then Borrower shall pay any compensation payable pursuant to Section 3.5 in connection with any related assignments or purchases by Lenders pursuant to clause (c) below that are not waived by the relevant Lenders;
(H) no event shall have occurred since the date of the audited financial statements most recently delivered pursuant to Section 6.2(a), with respect to Borrower and its Subsidiaries, taken as a whole, that has resulted, or could reasonably be expected to result, in a Material Adverse Change;
(I) on the effective date of such increase, Borrower shall pay any compensation due pursuant to Section 3.5 (unless waived by the applicable Lender) as a result of any deemed payment or prepayment in connection with such Incremental Increase;
(J) to the extent that previously delivered resolutions do not authorize such Incremental Increases, Agent shall have received such corporate resolutions of Borrower and legal opinions of counsel to Borrower as Agent may reasonably request with respect thereto, in each case, in form and substance reasonably satisfactory to Agent; and
(K) the Agent shall have received from the Borrower, a compliance certificate in the form required to be delivered in accordance with Section 6.2(c) demonstrating that the Borrower is in compliance with the financial covenants set forth in Section 7.11, in each case based on the financial statements most recently delivered under Section 6.2(a) or (b) after giving pro forma effect to the incurrence of any such Incremental Increase (and assuming that any such Incremental Revolving Credit Facility Increase is fully drawn) and any Permitted Acquisition, refinancing of Indebtedness or other event consummated in connection therewith.
(c) Upon the effectiveness of each Incremental Commitment Agreement executed by an Incremental Lender, (i) such Incremental Lender will become a Term Lender or a Revolving Lender, as applicable, for all purposes and to the same extent as if originally a party hereto and will be bound by and entitled to the benefits of this Agreement, (ii) the Incremental Term Loan Commitments or Revolving Loan Commitments and Aggregate Revolving Loan Commitment, if and as applicable, will be deemed to include the Incremental Increase of such Incremental Lender, and (iii) such Incremental Lender shall purchase a pro rata portion of the outstanding Incremental Term Loans or Revolving Loans (and participation interests in Letters of Credit), if and as applicable, from each of the other Revolving Lenders or Term Lenders, if and as applicable, (and such Lenders hereby agree to sell and to take all such further action to effectuate such sale) so that each Lender (including each Incremental Lender) holds the appropriate percentage of Revolving Facility Usage or Term Loans, as applicable.
(d) Upon its receipt of a duly completed Incremental Commitment Agreement, executed by Borrower and each Incremental Lender party thereto, and the administrative questionnaire referred to in Section 2.17(b)(iii)(C), and subject to the satisfaction of the other conditions of this Section 2.17, Agent shall accept such Incremental Commitment Agreement and record the information contained therein in the Register. No increase in the aggregate Revolving Loan Commitments will be effective for purposes of this Agreement unless the relevant Incremental Commitment Agreement shall have been delivered to Agent.
(e) In additional to the receipt of a duly completed Incremental Commitment Agreement, each such Incremental Increase shall be effected pursuant to an amendment (an “Incremental Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Restricted Persons, the Agent and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility.
(c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(d) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment).
(e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which Incremental Amendment may, without the consent of any other LendersLenders and notwithstanding anything to the contrary in Section 10.1 or otherwise in this Agreement, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of Agent and Borrowerthe Agent, to effect the provisions of this Section 2.20, and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf)2.17.
Appears in 1 contract
Incremental Increases. (a) At any time after the Closing Date, Borrower may by upon written notice to Agent (x) request Administrative Agent, the establishment of one or more incremental term loan commitments (eachBorrower may, an “Incremental Term Loan Commitment”) from time to make one or more additional term loans (any such additional term loantime, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment B Loan Commitments (each, a “Revolving Credit Commitment Increase” and, together with any Incremental Term Loan Commitment and Incremental Term Loan, the an “Incremental IncreasesIncrease”); provided that (iA) the total aggregate initial principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based on the original principal amount thereof) and (ii) the total aggregate amount for each of such requested Incremental Increase shall not exceed the Incremental Facilities Limit, (B) any such Incremental Increase shall be less than in a minimum principal amount of $10,000,000 5,000,000 (or such lesser amount as agreed to by Administrative Agent) or, if less, the remaining amount of the Incremental Facilities Limit, (C) no Lender will be required otherwise obligated to provide any SECOND AMENDED AND RESTATED CREDIT AGREEMENT62 portion of such Incremental Increase and (D) no more than five (5) Incremental Increases shall be permitted to be requested during the term of this Agreement.
(b) Each notice from the Borrower pursuant to this Section 3.9 shall set forth the foregoing clause requested amount and proposed terms of the relevant Incremental Increase. Incremental Increases may be provided by any existing Lender or by any other Persons (i). Each each such notice shall specify the date (eachLender or other Person, an “Incremental Effective DateLender”); provided that Administrative Agent and/or the Swing Line Lender, as applicable, shall have consented (not to be unreasonably withheld or delayed) on to such Incremental Lender’s providing such Incremental Increases to the extent any such consent would be required under Section 11.57 for an assignment of Loans or Commitments, as applicable, to such Incremental Lender. At the time of sending such notice, the Borrower (in consultation with Administrative Agent) shall specify the time period within which Borrower proposes that any each proposed Incremental Increase shall be effectiveLender is requested to respond, which shall in no event be a date not less than ten (10) Business Days from the date of delivery of such notice to the proposed Incremental Lenders (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Administrative Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any Each proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, and shall notify Administrative Agent within such time period whether it agrees, to provide an Incremental Increase and, if so, whether by an amount equal to, greater than or less than requested. Any Person not responding within such time period shall be deemed to have declined to provide an Incremental Increase.
(bc) Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Incremental Increase (limited in the case of the Incremental Lenders to their own respective allocations thereof). Administrative Agent shall promptly notify the Borrower and the Incremental Lenders of the final allocation of such Incremental Increases and the Increase Effective Date.
(d) The terms of each Incremental Increase (which shall be set forth in the relevant Incremental Amendment) shall be determined by the Borrower and the applicable Incremental Lenders; provided that:
(i) each such Incremental Increase shall have the same terms, including maturity, Applicable Rate and Commitment Fees, as the Revolving B Loan Facility; provided that (x) any upfront fees payable by the Borrower to the Lenders under any Incremental Increases may differ from those payable under the then existing Revolving B Loan Commitments and (y) the Applicable Rate or Commitment Fees or interest rate floor applicable to any Incremental Increase may be higher than the Applicable Rate or Commitment Fees or interest rate floor applicable to the Revolving B Loan Facility if the Applicable Rate or Commitment Fees or interest rate floor applicable to the Revolving B Loan Facility are increased to equal the Applicable Rate and Commitment Fees and interest rate floor applicable to such Incremental Increase; and
(ii) the outstanding Revolving B Loans will be reallocated by Administrative Agent on the applicable Increase Effective Date among the Revolving B Lenders (including the Incremental Lenders providing such Incremental Increase) in accordance with their revised Revolving B Loan Commitment Percentages (and the Revolving B Lenders (including the Incremental Lenders providing such Incremental Increase) agree to make all payments and adjustments necessary to effect such reallocation and the SECOND AMENDED AND RESTATED CREDIT AGREEMENT63 Borrower shall pay any and all costs required pursuant to Section 3.5 in connection with such reallocation as if such reallocation were a repayment); and
(iii) each Incremental Increase shall constitute Obligations of the Borrower and will be guaranteed by the Guarantors and secured on a pari passu basis with the other Secured Obligations.
(e) Any Incremental Increase shall become effective as of such Incremental Increase Effective Date; provided thatDate and shall be subject to the following conditions precedent:
(i) no Default or Event of Default shall exist on such Incremental Increase Effective Date before immediately prior to or after giving effect to any (A) such Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment Increase or (B) the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time making of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of fundinginitial advances pursuant thereto;
(ii) each all of the representations and warranties contained set forth in Section 4 Article IV shall be true and correct in all material respects, except to the extent any such representation and warranty is respects (or if qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and ) as of such date (except for any Increase Effective Date, or if such representation and warranty that by its terms is made only speaks as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Administrative Agent and the Lenders shall have received from Borrower the Borrower, a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to demonstrating that the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicableArticle VIII, both before and after giving effect (on a pro forma basis) basis to (x) any Incremental Increase, (y) the making incurrence of any Loans pursuant thereto such Incremental Increase (with and assuming that any such Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be is fully fundeddrawn) and (z) any Permitted Acquisition consummated in connection therewithAcquisition, refinancing of Indebtedness or other event consummated in connection therewith giving rise to a pro forma basis adjustment; provided that, with respect ;
(iv) the Loan Parties shall have executed an Incremental Amendment in form and substance reasonably acceptable to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;; and
(viiv) Administrative Agent shall have received from the interest rate marginsBorrower, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, including a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) Increase), reasonably requested by Administrative Agent or the Incremental Lenders in connection with any such transaction;Incremental Increase.
(ixf) except as provided above, all other terms and conditions applicable to any Each such Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, Increase shall be reasonably satisfactory effected pursuant to Agentan amendment (an “Incremental Amendment”) to this Agreement and, Borrower as appropriate, the other Loan Documents, executed by the Loan Parties, Administrative Agent and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility.
(c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(d) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment).
(e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which 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 Agent and BorrowerAdministrative Agent, to effect the provisions of this Section 2.203.9.
(g) The proceeds of any Incremental Increase may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of SECOND AMENDED AND RESTATED CREDIT AGREEMENT64 Permitted Acquisitions and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf)other Investments permitted hereunder and any other use not prohibited by this Agreement.
Appears in 1 contract
Incremental Increases. (a) At any time after the Closing Date, Borrower may by upon written notice to Agent (x) request Administrative Agent, the establishment of one or more incremental term loan commitments (eachBorrower may, an “Incremental Term Loan Commitment”) from time to make one or more additional term loans (any such additional term loantime, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment B Loan Commitments (each, a “Revolving Credit Commitment Increase” and, together with any Incremental Term Loan Commitment and Incremental Term Loan, the an “Incremental IncreasesIncrease”); provided that (iA) the total aggregate initial principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based on the original principal amount thereof) and (ii) the total aggregate amount for each of such requested Incremental Increase shall not exceed the Incremental Facilities Limit, (B) any such Incremental Increase shall be less than in a minimum principal amount of $10,000,000 5,000,000 (or such lesser amount as agreed to by Administrative Agent) or, if less, the remaining amount of the Incremental Facilities Limit, (C) no Lender will be required otherwise obligated to provide any portion of such Incremental Increase and (D) no more than five (5) Incremental Increases shall be permitted to be requested during the term of this Agreement. SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(b) Each notice from the Borrower pursuant to this Section 3.9 shall set forth the foregoing clause requested amount and proposed terms of the relevant Incremental Increase. Incremental Increases may be provided by any existing Lender or by any other Persons (i). Each each such notice shall specify the date (eachLender or other Person, an “Incremental Effective DateLender”); provided that Administrative Agent and/or the Swing Line Lender, as applicable, shall have consented (not to be unreasonably withheld or delayed) on to such Incremental Lender’s providing such Incremental Increases to the extent any such consent would be required under Section 11.5 for an assignment of Loans or Commitments, as applicable, to such Incremental Lender. At the time of sending such notice, the Borrower (in consultation with Administrative Agent) shall specify the time period within which Borrower proposes that any each proposed Incremental Increase shall be effectiveLender is requested to respond, which shall in no event be a date not less than ten (10) Business Days from the date of delivery of such notice to the proposed Incremental Lenders (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Administrative Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any Each proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, and shall notify Administrative Agent within such time period whether it agrees, to provide an Incremental Increase and, if so, whether by an amount equal to, greater than or less than requested. Any Person not responding within such time period shall be deemed to have declined to provide an Incremental Increase.
(bc) Any Incremental Administrative Agent and the Borrower shall determine the effective date (the “Increase shall become effective as Effective Date”) and the final allocation of such Incremental Increase (limited in the case of the Incremental Lenders to their own respective allocations thereof). Administrative Agent shall promptly notify the Borrower and the Incremental Lenders of the final allocation of such Incremental Increases and the Increase Effective Date.
(d) The terms of each Incremental Increase (which shall be set forth in the relevant Incremental Amendment) shall be determined by the Borrower and the applicable Incremental Lenders; provided that:
(i) no Default or Event of Default shall exist on each such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of funding;
(ii) each of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Agent and the Lenders shall have received from Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;
(vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction;
(ix) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, shall be reasonably satisfactory to Agent, Borrower and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest ratematurity, unused fees Applicable Rate and upfront feesCommitment Fees, as the Revolving Credit B Loan Facility.
; provided that (cx) On any upfront fees payable by the Borrower to the Lenders under any Incremental Effective Date on which Increases may differ from those payable under the then existing Revolving B Loan Commitments and (y) the Applicable Rate or Commitment Fees or interest rate floor applicable to any Incremental Term Loan Increase may be higher than the Applicable Rate or Commitment becomes effective, subject Fees or interest rate floor applicable to the foregoing terms Revolving B Loan Facility if the Applicable Rate or Commitment Fees or interest rate floor applicable to the Revolving B Loan Facility are increased to equal the Applicable Rate and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment Fees and shall become a Lender hereunder with respect interest rate floor applicable to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders Increase; and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(dii) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit B Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Administrative Agent on the applicable Increased Amount Increase Effective Date among the Revolving Credit B Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit B Loan Commitment Percentages (and the Revolving Credit B Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) 3.5 in connection with such reallocation as if such reallocation were a repayment); and SECOND AMENDED AND RESTATED CREDIT AGREEMENT
(iii) each Incremental Increase shall constitute Obligations of the Borrower and will be guaranteed by the Guarantors and secured on a pari passu basis with the other Secured Obligations.
(e) Such Any Incremental Increases Increase shall become effective as of such Increase Effective Date and shall be subject to the following conditions precedent:
(i) no Default or Event of Default shall exist on such Increase Effective Date immediately prior to or after giving effect to (A) such Incremental Increase or (B) the making of the initial advances pursuant thereto;
(ii) all of the representations and warranties set forth in Article IV shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such Increase Effective Date, or if such representation speaks as of an earlier date, as of such earlier date;
(iii) Administrative Agent shall have received from the Borrower, a Compliance Certificate demonstrating that the Borrower is in compliance with the financial covenants set forth in Article VIII, both before and after giving effect on a pro forma basis to the incurrence of any such Incremental Increase (and assuming that any such Incremental Increase is fully drawn) and any Permitted Acquisition, refinancing of Indebtedness or other event consummated in connection therewith giving rise to a pro forma basis adjustment;
(iv) the Loan Parties shall have executed an Incremental Amendment in form and substance reasonably acceptable to the Borrower and the applicable Incremental Lenders; and
(v) Administrative Agent shall have received from the Borrower, any customary legal opinions or other documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase), reasonably requested by Administrative Agent in connection with such Incremental Increase.
(f) Each such Incremental Increase shall be effected pursuant to one or more an amendment (an “Incremental Amendments Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by Borrowerthe Loan Parties, Administrative Agent and the applicable Incremental Lenders (Lenders, which 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 Agent and BorrowerAdministrative Agent, to effect the provisions of this Section 2.203.9.
(g) The proceeds of any Incremental Increase may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of Permitted Acquisitions and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf)other Investments permitted hereunder and any other use not prohibited by this Agreement.
Appears in 1 contract
Incremental Increases. (a) At any time after the Closing Date, Borrower may by upon written notice to Agent (x) request Administrative Agent, the establishment of one or more incremental term loan commitments (eachBorrower may, an “Incremental Term Loan Commitment”) from time to make one or more additional term loans (any such additional term loantime, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment B Loan Commitments (each, a “Revolving Credit Commitment Increase” and, together with any Incremental Term Loan Commitment and Incremental Term Loan, the an “Incremental IncreasesIncrease”); provided that (iA) the total aggregate initial principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to $150,000,000 (based on the original principal amount thereof) and (ii) the total aggregate amount for each of such requested Incremental Increase shall not exceed the Incremental Facilities Limit, (B) any such Incremental Increase shall be less than in a minimum principal amount of $10,000,000 5,000,000 (or such lesser amount as agreed to by Administrative Agent) or, if less, the remaining amount of the Incremental Facilities Limit, (C) no Lender will be required otherwise obligated to provide any portion of such Incremental Increase and (D) no more than five (5) Incremental Increases shall be permitted to be requested during the term of this Agreement.
(b) Each notice from the Borrower pursuant to this Section 3.9 shall set forth the foregoing clause requested amount and proposed terms of the relevant Incremental Increase. Incremental Increases may be provided by any existing Lender or by any other Persons (i). Each each such notice shall specify the date (eachLender or other Person, an “Incremental Effective DateLender”); provided that Administrative Agent and/or the Swing Line Lender, as applicable, shall have consented (not to be unreasonably withheld or delayed) on to such Incremental Lender’s providing such Incremental Increases to the extent any such consent would be required under Section 11.7 for an assignment of Loans or Commitments, as applicable, to such Incremental Lender. At the time of sending such notice, the Borrower (in consultation with Administrative Agent) shall specify the time period within which Borrower proposes that any each proposed Incremental Increase shall be effectiveLender is requested to respond, which shall in no event be a date not less than ten (10) Business Days from the date of delivery of such notice to the proposed Incremental Lenders (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Administrative Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any Each proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, and shall notify Administrative Agent within such time period whether it agrees, to provide an Incremental Increase and, if so, whether by an amount equal to, greater than or less than requested. Any Person not responding within such time period shall be deemed to have declined to provide an Incremental Increase.
(bc) Any Incremental Administrative Agent and the Borrower shall determine the effective date (the “Increase shall become effective as Effective Date”) and the final allocation of such Incremental Increase (limited in the case of the Incremental Lenders to their own respective allocations thereof). Administrative Agent shall promptly notify the Borrower and the Incremental Lenders of the final allocation of such Incremental Increases and the Increase Effective Date.
(d) The terms of each Incremental Increase (which shall be set forth in the relevant Incremental Amendment) shall be determined by the Borrower and the applicable Incremental Lenders; provided that:
(i) no Default or Event of Default shall exist on each such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of funding;
(ii) each of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Agent and the Lenders shall have received from Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;
(vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction;
(ix) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, shall be reasonably satisfactory to Agent, Borrower and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest ratematurity, unused fees Applicable Rate and upfront feesCommitment Fees, as the Revolving Credit B Loan Facility.
; provided that (cx) On any upfront fees payable by the Borrower to the Lenders under any Incremental Effective Date on which Increases may differ from those payable under the then existing Revolving B Loan Commitments and (y) the Applicable Rate or Commitment Fees or interest rate floor applicable to any Incremental Term Loan Increase may be higher than the Applicable Rate or Commitment becomes effective, subject Fees or interest rate floor applicable to the foregoing terms Revolving B Loan Facility if the Applicable Rate or Commitment Fees or interest rate floor applicable to the Revolving B Loan Facility are increased to equal the Columbia – Second Amended and conditions, each Incremental Lender with an Incremental Term Loan Restated Credit Agreement Applicable Rate and Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment Fees and shall become a Lender hereunder with respect interest rate floor applicable to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders Increase; and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(dii) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit B Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Administrative Agent on the applicable Increased Amount Increase Effective Date among the Revolving Credit B Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit B Loan Commitment Percentages (and the Revolving Credit B Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) 3.5 in connection with such reallocation as if such reallocation were a repayment); and
(iii) each Incremental Increase shall constitute Obligations of the Borrower and will be guaranteed by the Guarantors and secured on a pari passu basis with the other Secured Obligations.
(e) Such Any Incremental Increases Increase shall become effective as of such Increase Effective Date and shall be subject to the following conditions precedent:
(i) no Default or Event of Default shall exist on such Increase Effective Date immediately prior to or after giving effect to (A) such Incremental Increase or (B) the making of the initial advances pursuant thereto;
(ii) all of the representations and warranties set forth in Article IV shall be true and correct in all material respects (or if qualified by materiality or Material Adverse Effect, in all respects) as of such Increase Effective Date, or if such representation speaks as of an earlier date, as of such earlier date;
(iii) Administrative Agent shall have received from the Borrower, a Compliance Certificate demonstrating that the Borrower is in compliance with the financial covenants set forth in Article VIII, both before and after giving effect on a pro forma basis to the incurrence of any such Incremental Increase (and assuming that any such Incremental Increase is fully drawn) and any Permitted Acquisition, refinancing of Indebtedness or other event consummated in connection therewith giving rise to a pro forma basis adjustment;
(iv) the Loan Parties shall have executed an Incremental Amendment in form and substance reasonably acceptable to the Borrower and the applicable Incremental Lenders; and
(v) Administrative Agent shall have received from the Borrower, any customary legal opinions or other documents (including a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase), reasonably requested by Administrative Agent in connection with such Incremental Increase.
(f) Each such Incremental Increase shall be effected pursuant to one or more an amendment (an “Incremental Amendments Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed and delivered by Borrowerthe Loan Parties, Administrative Agent and the applicable Incremental Lenders (Lenders, which Incremental Columbia – Second Amended and Restated Credit Agreement 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 Agent and BorrowerAdministrative Agent, to effect the provisions of this Section 2.203.9.
(g) The proceeds of any Incremental Increase may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of Permitted Acquisitions and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf)other Investments permitted hereunder and any other use not prohibited by this Agreement.
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Incremental Increases. (a) At any time after the Closing Date, Borrower may by written notice to Agent (x) request the establishment of one or more incremental term loan commitments (each, an “Incremental Term Loan Commitment”) to make one or more additional term loans (any such additional term loan, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment (each, a “Revolving Credit Commitment Increase” and, together with any Incremental Term Loan Commitment and Incremental Term Loan, the “Incremental Increases”); provided that (i) the total aggregate principal amount for all Incremental Increases incurred pursuant to this Section 2.20 shall not exceed an amount equal to the greater of (A) $150,000,000 (based on the original principal amount thereof) and (B) 100% of Consolidated EBITDA of Borrower and its Subsidiaries for the most recently completed Reference Period (based on the original principal amount thereof) and (ii) the total aggregate amount for each Incremental Increase shall not be less than a minimum principal amount of $10,000,000 or, if less, the remaining amount permitted pursuant to the foregoing clause (i). Each such notice shall specify the date (each, an “Incremental Effective Date”) on which Borrower proposes that any Incremental Increase shall be effective, which shall be a date not less than ten (10) Business Days (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, to provide such Incremental Increase.
(b) Any Incremental Increase shall become effective as of such Incremental Effective Date; provided that:
(i) no Default or Event of Default shall exist on such Incremental Effective Date before or after giving effect to any Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of funding;
(ii) each of the representations and warranties contained in Section 4 shall be true and correct in all material respects, except to the extent any such representation and warranty is qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and as of such date (except for any such representation and warranty that by its terms is made only as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Agent and the Lenders shall have received from Borrower a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicable, both before and after giving effect (on a pro forma basis) to (x) any Incremental Increase, (y) the making of any Loans pursuant thereto (with any Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment being deemed to be fully funded) and (z) any Permitted Acquisition consummated in connection therewith, refinancing of Indebtedness or other event giving rise to a pro forma adjustment; provided that, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders;
(vii) the interest rate margins, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) reasonably requested by Agent or the Incremental Lenders in connection with any such transaction;
(ix) except as provided above, all other terms and conditions applicable to any Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, shall be reasonably satisfactory to Agent, Borrower and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility.
(c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(d) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent on the applicable Increased Amount Incremental Effective Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Commitment Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Commitment Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment).
(e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which 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 Agent and Borrower, to effect the provisions of this Section 2.20, and the Lenders hereby expressly authorize Agent to enter into such amendment on their behalf).
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Incremental Increases. (a) At any time after the Closing Date, Borrower may by upon written notice to Agent (x) request Administrative Agent, the establishment of one or more incremental term loan commitments (eachBorrower may, an “Incremental Term Loan Commitment”) from time to make one or more additional term loans (any such additional term loantime, an “Incremental Term Loan”) and/or (y) request one or more increases in the Revolving Credit Commitment Loan Commitments (each, a an “Revolving Credit Incremental Commitment Increase” and, together with ”) or enter into one or more tranches of term loans (each an “Incremental Term Loan”; any Incremental Commitment Increase or Incremental Term Loan Commitment and Incremental Term Loan, the being referred to as an “Incremental IncreasesIncrease”); provided that (iA) the total aggregate initial principal amount for of all Incremental Increases incurred pursuant to this Section 2.20 hereunder shall not exceed an amount equal to $150,000,000 the Incremental Facilities Limit, (based on the original principal amount thereofB) and (ii) the total aggregate amount for each any such Incremental Increase shall not be less than in a minimum principal amount of $10,000,000 5,000,000 (or such lesser amount as agreed to by Administrative Agent) or, if less, the remaining amount of the Incremental Facilities Limit, (C) no Lender will be required otherwise obligated to provide any portion of such Incremental Increase and (D) no more than five (5) Incremental Increases shall be permitted to be requested during the term of this Agreement.
(b) Each notice from the Borrower pursuant to this Section 3.9 shall set forth the foregoing clause requested amount and proposed terms of the relevant Incremental Increase. Incremental Increases may be provided by any existing Lender or by any other Eligible Assignee (i). Each each such notice shall specify the date (eachLender or other Person, an “Incremental Effective DateLender”) on which Borrower proposes ); provided that Administrative Agent and, in the case of any Incremental Increase Commitment Increase, each Issuing Lender and the Swing Line Lender, shall have consented (in each case not to be effectiveunreasonably withheld or delayed) to such Incremental Lender’s providing such Incremental Increases to the extent any such consent would be required under Section 11.7 for an assignment of Loans or Revolving Loan Commitments, as applicable, to such Incremental Lender. At the time of sending such notice, the Borrower (in consultation with Administrative Agent) shall specify the time period within which each proposed Incremental Lender is requested to respond, which shall in no event be a date not less than ten (10) Business Days from the date of delivery of such notice to the proposed Incremental Lenders (or such shorter period as agreed to by Agent in its sole discretion) after the date on which such notice is delivered to Administrative Agent. Borrower may invite any Lender, any Affiliate of any Lender, any Approved Fund and/or any other Eligible Assignee, to provide an Incremental Increase (any such Person, an “Incremental Lender”). Any Each proposed Incremental Lender offered or approached to provide all or a portion of any Incremental Increase may elect or decline, in its sole discretion, and shall notify Administrative Agent within such time period whether it agrees, to provide an Incremental Increase and, if so, whether by an amount equal to, greater than or less than requested. Any Person not responding within such time period shall be deemed to have declined to provide an Incremental Increase.
(bc) Administrative Agent and the Borrower shall determine the effective date (the “Increase Effective Date”) and the final allocation of such Incremental Increase (limited in the case of the Incremental Lenders to their own respective allocations thereof). Administrative Agent shall promptly notify the Borrower and the Incremental Lenders of the final allocation of such Incremental Increases and the Increase Effective Date.
(d) The terms of each Incremental Increase (which shall be set forth in the relevant Incremental Amendment) shall be determined by the Borrower and the applicable Incremental Lenders; provided that:
(i) each such Incremental Commitment Increase shall have the same terms, including maturity, Applicable Rate and Commitment Fees, as applicable to the Revolving Loan Commitments; provided that (x) any upfront fees payable by the Borrower to the Lenders under any Incremental Commitment Increases may differ from those payable under the then existing Revolving Loan Commitments and (y) the Applicable Rate or Commitment Fees or interest rate floor applicable to any Incremental Commitment Increase may be higher than the Applicable Rate or Commitment Fees or interest rate floor applicable to the Revolving Loan Commitments if the Applicable Rate or Commitment Fees or interest rate floor applicable to the Revolving Loan Commitments are increased to equal the Applicable Rate and Commitment Fees and interest rate floor applicable to such Incremental Increase; and
(ii) the Incremental Term Loans (A) shall not mature earlier than the Maturity Date (but may have market level amortization prior to such date), (B) to the extent any Incremental Term Loans have been provided hereunder prior to such date, shall have a Weighted Average Life to Maturity no shorter than that applicable to the previously provided Incremental Term Loans and (C) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and any other Incremental Term Loans provided hereunder prior to such date; provided that (x) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Maturity Date and (y) the Incremental Term Loans may be priced differently than the Applicable Rate or interest rate floor applicable to the Revolving Loans or any other Incremental Term Loans provided hereunder prior to such date; and
(iii) each Incremental Increase shall constitute Obligations of the Borrower and will be guaranteed by the Guarantors and secured on a pari passu basis with the other Obligations.
(e) Any Incremental Increase shall become effective as of such Incremental Increase Effective Date; provided thatDate and shall be subject to the following conditions precedent:
(i) no Default or Event of Default shall exist on such Incremental Increase Effective Date before immediately prior to or after giving effect to any (A) such Incremental Increase; provided that, with respect to any Incremental Term Loan Commitment Increase or (B) the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (i) may be determined at the time making of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower and the applicable Incremental Lenders; provided further that no Event of Default under Sections 8.1, 8.4 or 8.5 shall exist at the time of fundinginitial advances pursuant thereto;
(ii) each all of the representations and warranties contained set forth in Section 4 Article IV shall be true and correct in all material respects, except to the extent any such representation and warranty is respects (or if qualified by materiality or reference to Material Adverse Effect, in which case, such representation and warranty shall be true and correct in all respects, on such Incremental Effective Date with the same effect as if made on and ) as of such date (except for any Increase Effective Date, or if such representation and warranty that by its terms is made only speaks as of an earlier date, which representation and warranty shall remain true and correct as of such earlier date); provided that, with respect to any Incremental Term Loan Commitment primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (ii) may be subject to customary “Sungard” limitations agreed to by Borrower and the applicable Incremental Lenders;
(iii) the proceeds of any Incremental Increase shall be used for general corporate purposes of Borrower and its Subsidiaries (including, without limitation, Permitted Acquisitions and Restricted Payments);
(iv) each Incremental Increase shall constitute Obligations, shall have the same Guarantors as the other Loans and shall be secured by the Collateral on a pari passu basis with the other Loans;
(v) Incremental Term Loans will not have a maturity date earlier than the Maturity Date;
(vi) the Administrative Agent and the Lenders shall have received from Borrower the Borrower, a Compliance Certificate demonstrating, in form and substance reasonably satisfactory to compliance certificate demonstrating that the Agent, that Borrower is in compliance with the financial covenants set forth in Section 7 based on the financial statements most recently delivered pursuant to Section 5.1(a)(i) or 5.1(a)(ii), as applicableArticle VIII, both before and after giving effect (on a pro forma basis) basis to (x) any Incremental Increase, (y) the making incurrence of any Loans pursuant thereto (with any such Incremental Term Loan Commitment, Revolving Credit Commitment Increase and the Revolving Credit Commitment use of the proceeds thereof (and assuming that any such Incremental Increase is fully drawn and calculated without netting any cash proceeds of such Incremental Increase or any other Indebtedness being deemed to be fully funded) and (z) any Permitted Acquisition consummated funded on such date in connection therewith) and any Permitted Acquisition, refinancing of Indebtedness or other event consummated in connection therewith giving rise to a pro forma basis adjustment; provided that;
(iv) the Loan Parties shall have executed an Incremental Amendment in form and substance reasonably acceptable to the Borrower, with respect to any Incremental Term Loan Commitment the primary purpose of which is to finance a substantially concurrent Limited Conditionality Acquisition, this clause (vi) may be determined at the time of the signing (as opposed to closing) of the acquisition agreement with respect thereto as agreed to by Borrower Administrative Agent and the applicable Incremental Lenders;; and
(viiv) Administrative Agent shall have received from the interest rate marginsBorrower, amortization schedule and mandatory prepayments applicable to any Incremental Term Loan shall be determined by Borrower and the applicable Incremental Lenders in their mutual sole discretion;
(viii) Borrower shall deliver or cause to be delivered any customary legal opinions or other documents (including, without limitation, including a resolution duly adopted by the board of directors (or equivalent governing body) of each Loan Party authorizing such Incremental Increase substantially consistent with those delivered on the Closing Date) Increase), reasonably requested by Administrative Agent or the Incremental Lenders in connection with any such transaction;Incremental Increase.
(ixf) except as provided above, all other terms and conditions applicable to any Each such Incremental Term Loan, to the extent not consistent with the terms and conditions applicable to the Revolving Credit Facility, Increase shall be reasonably satisfactory effected pursuant to Agentan amendment (an “Incremental Amendment”) to this Agreement and, Borrower as appropriate, the other Loan Documents, executed by the Loan Parties, Administrative Agent and the applicable Incremental Lenders; and
(x) each Revolving Credit Commitment Increase shall have the same terms, including interest rate, unused fees and upfront fees, as the Revolving Credit Facility.
(c) On any Incremental Effective Date on which any Incremental Term Loan Commitment becomes effective, subject to the foregoing terms and conditions, each Incremental Lender with an Incremental Term Loan Commitment shall make, or be obligated to make, an Incremental Term Loan to Borrower in an amount equal to its Incremental Term Loan Commitment and shall become a Lender hereunder with respect to such Incremental Term Loan Commitment and the Incremental Term Loan made pursuant thereto. The Incremental Lenders shall be included in any determination of the Required Lenders and, unless otherwise agreed, the Incremental Lenders will not constitute a separate voting class for any purposes under this Agreement. Any Incremental Lender shall be entitled to the same voting rights as the existing Lenders under the applicable Credit Facility.
(d) On any Incremental Effective Date on which any Revolving Credit Commitment Increase becomes effective, the outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages of Swingline Loans and L/C Obligations will be reallocated by Agent on the applicable Increased Amount Date among the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) in accordance with their revised Revolving Credit Commitment Percentages (and the Revolving Credit Lenders (including the Incremental Lenders providing such Incremental Revolving Credit Increase) agree to make all payments and adjustments necessary to effect such reallocation and the Borrower shall pay any and all costs required pursuant to Section 2.19(e) in connection with such reallocation as if such reallocation were a repayment).
(e) Such Incremental Increases shall be effected pursuant to one or more Incremental Amendments executed and delivered by Borrower, Agent and the applicable Incremental Lenders (which 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 Agent and BorrowerAdministrative Agent, to effect the provisions of this Section 2.203.9.
(g) The proceeds of any Incremental Increase may be used by the Borrower and its Subsidiaries for working capital and other general corporate purposes, including the financing of Permitted Acquisitions and the Lenders hereby expressly authorize other Investments permitted hereunder and any other use not prohibited by this Agreement.
(h) In connection with any Incremental Increase, any Incremental Lender becoming a party hereto shall (1) execute such documents and agreements as Administrative Agent may reasonably request and (2) provide to Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for Administrative Agent to enter into such amendment on their behalf)comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
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