Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 4 contracts
Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments (but not, for the avoidance of doubt, the Swingline Commitment) in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Issuer, the Swingline Lender and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease and immediately prior to giving effect to any such increase and the addition of any Augmenting Lenders to this Agreement, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 4 contracts
Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, the Swingline Lender, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an a Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 3 contracts
Sources: Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.), Revolving Credit Agreement (ITC Holdings Corp.)
Expansion Option. The Borrower may from time 32.1 By giving written notice to time elect LANDLORD on or before July 1, 2000, TENANT shall have the right to increase expand the Revolving Credit Commitments in minimum increments Leased Premises to include the tenth floor of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long asBuilding which consists of approximately 20,271 square feet of additional rentable area. TENANT's notice exercising this option to-expand shall specify whether the expansion shall be effective on January 1, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that 2001 (i) each Augmenting Lender, shall be subject as to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and entire tenth floor or (ii) only as to approximately 9,000 square feet, with June 1, 2001 being the effective date for the remaining space on the tenth floor. Basic Annual Rent and additional rent for this expansion will commence upon the substantial completion of the tenth floor (xor the substantial completion of the designated portion of the tenth floor if the expansion is occurring in two steps) where substantial completion shall mean that, with the exception of punch-list items, TENANT's buildout shall have been completed in accordance with the case plans referenced below and a certificate of occupancy for the expansion space shall have been issued. TENANT's right to exercise the expansion option shall be ineffective unless the following conditions have been satisfied:
(a) TENANT shall not currently be in default under this Lease; and
(b) TENANT shall have delivered an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially additional $1,000,000.00 Security Deposit in the form of Exhibit G hereto, and (y) in the case cash or a letter of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions credit as set forth in paragraphs Article 7 hereof (a) and (b) of Section 6.2 but upon TENANT's raising an additional $10,000,000.00 in equity financing after the date hereof, the additional Security Deposit shall be satisfied or waived reduced to $500,000.00); and Failure of the TENANT to satisfy all of the above conditions and to exercise the option to expand by July 1, 2000 will extinguish the TENANT's right to exercise the option to expand. In the event that TENANT effectively exercises the option to expand, the terms and conditions of this Lease shall apply to such additional space, TENANT shall receive an additional Buildout Allowance of $30.00 per square foot. Basic Annual Rent for the expansion space shall be at the same cost per square foot as the space on the eleventh floor initially comprising the Leased Premises. Tenant's Tax Share shall be increased appropriately to reflect the square footage of the Leased Premises divided by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer square footage of the Borrower and (B) the Borrower Building, which is currently 202,267 square feet. Tenant's Expense Share shall be in compliance with increased appropriately to reflect the covenant contained in Section 9.3 square footage of the Leased Premises divided by the non-retail square footage of the Building, which is currently 185,995 square feet. TENANT shall deliver to LANDLORD plans for the interior finish and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as other improvements to the organizational power tenth floor, prepared at TENANT's own expense, on or before September 1, 2000.
32.2 If at any time during the term of this Lease after September 1, 2000 contiguous
(i. e. below or adjacent) space becomes available in the Building, LANDLORD shall first offer such space to TENANT subject to the rights of existing tenants of such contiguous space and authority provided that the TENANT has exercised its expansion option and is currently renting the tenth floor of the Borrower Building. If TENANT responds negatively or does not respond within fifteen (15) days of LANDLORD's offer, LANDLORD may offer the space to borrow hereunder after giving effect third parties. If TENANT responds affirmatively within such fifteen (15) day period, LANDLORD and TENANT shall promptly amend this Lease to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, account for the benefit of the other Lenders, as being required in order to cause, after giving effect to additional rental space. The rent for such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower contiguous space shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderPrevailing Market Rent.
Appears in 3 contracts
Sources: Sublease Agreement (Color Kinetics Inc), Sublease Agreement (Smartbargains, Inc.), Lease Agreement (Color Kinetics Inc)
Expansion Option. The Borrower may from time 7.1 Subject to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs this Article, Tenant shall have the right, but not the obligation, to expand the Premises (the “Expansion Option”) to include Suite 119 consisting of approximately 2,959 square feet of Rentable Area as more particularly shown on the floor plan attached hereto as Exhibit B (the “Expansion Space”).
7.2 Tenant may exercise the Expansion Option by providing Landlord with written notice (the “Expansion Option Notice”) that Tenant has elected to exercise the Expansion Option. Within ten (10) days after exercising the Expansion Option, Tenant and Landlord shall enter into a written amendment to the Lease (the “Expansion Amendment”), which amendment shall provide, unless otherwise agreed in writing, (a) and that the commencement date of the Expansion Space shall be the date (the “Expansion Space Commencement Date”) that is thirty (30) days after the date that Tenant delivers the Expansion Option Notice, (b) of Section 6.2 that the Premises shall be satisfied increased to include the square feet of Rentable Area of the Expansion Space, (c) the new Base Rent, with the Expansion Space increasing Base Rent at the then-current base rental rate per square foot of Rentable Area under the Amended Lease, (d) Tenant’s new Pro Rata Share based upon the addition of the Expansion Space to the Premises and (e) that Tenant shall accept the Expansion Space in its condition “as is” as of the Expansion Space Commencement Date and that Landlord shall have no obligation to alter, repair or waived otherwise prepare the Expansion Space for Tenant’s occupancy or to pay for any improvements to the Expansion Space, except as may be expressly provided in Section 7.7 of this Amendment. In all other respects, the Amended Lease shall remain in full force and effect, and shall apply to the Expansion Space.
7.3 Notwithstanding anything in this Article to the contrary, Tenant shall not exercise the Expansion Option during such period of time that Tenant is in default under any provision of the Amended Lease. Any attempted exercise of the Expansion Option during a period of time in which Tenant is so in default shall be void and of no effect. In addition, Tenant shall not be entitled to exercise the Expansion Option if Landlord has given Tenant three (3) or more notices of default under the Amended Lease, whether or not the defaults are cured, during the five (5) month period prior to the date on which Tenant seeks to exercise the Expansion Option.
7.4 If Tenant timely and properly exercises the Expansion Option, then Tenant shall have the right, but not the obligation, to reduce the Premises (the “Surrender Option”) by surrendering one of the Required Lenders following spaces (each, a “Surrender Space”): (a) Suite 222 (876 square feet of Rentable Area), (b) ▇▇▇▇▇ ▇▇▇ (▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇) or (c) ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇ (▇,▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇); provided, however, that Tenant must exercise the Surrender Option concurrently with Tenant’s delivery of the Expansion Option Notice by including in the Expansion Option Notice an express statement setting forth Tenant’s election to exercise the Surrender Option and the Administrative Agent specific Surrender Space to which Tenant’s election applies (the “Designated Surrender Space”). If Tenant fails to include such a statement in its Expansion Option Notice, then the Surrender Option shall have received a certificate automatically terminate and be of no further force or effect. If Tenant timely and properly exercises its Surrender Option as described in this Section 7.4, then the Expansion Amendment shall (w) include appropriate adjustments to that effect dated such date and executed by an Authorized Officer (i) the Premises (to reflect subtraction of the Borrower and (B) Rentable Area of the Borrower shall be in compliance with the covenant contained in Section 9.3 and Designated Surrender Space), (ii) Base Rent (with the Administrative Agent shall have received documents and opinions consistent with those delivered on Designated Surrender Space decreasing Base Rent at the effective date as to then-current base rental rate per square foot of Rentable Area under the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (iAmended Lease) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9iii). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 3 contracts
Sources: Lease (Tocagen Inc), Lease (Tocagen Inc), Lease (Tocagen Inc)
Expansion Option. (a) The Borrower may shall have the right from time to time elect after the Effective Date to increase the Revolving Credit Commitments in minimum increments of $25,000,000 request that additional term loans be made hereunder (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect theretoadditional term loans, the “Incremental Term Loans”) in an aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided exceeding €250,000,000 by causing one or more Additional Term Loan Lenders (each which may include any existing Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new and any other additional banks, financial institutions or and other entities institutional lenders that are Eligible Assignees) to provide Incremental Term Loans (each such new bankincrease in the amount of Term Loans under this Agreement, financial institution or other entity, an a “Augmenting LenderTerm Loan Increase”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, no Lender shall have any obligation hereunder to become an Additional Term Loan Lender and any election to do so shall be subject in the sole discretion of each Lender (and any Lender that does not advise the Borrower of its election to the approval of the Borrowerbecome an Additional Term Loan Lender hereunder shall be deemed to have rejected such request), each Letter of Credit Issuer and the Administrative Agent and (ii) each Term Loan Increase shall be in an aggregate amount for all Additional Term Loan Lenders of at least €25,000,000, and (xiii) in any Additional Term Loan Lender that is not an Eligible Assignee shall be approved by PPG (such approval not to be unreasonably withheld), which such approval shall be deemed granted if PPG does not respond to a request to consent for such approval on or before the case of an Increasing fifth Business Day following such request. Each such Additional Term Loan Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent shall enter into an agreement (and “Incremental Term Loan Agreement”) in form and substance satisfactory to the relevant Increasing Lenders or Augmenting Lenders, Borrower and the Administrative Agent pursuant to which each Additional Term Loan Lender shall, as of the effective date of such Term Loan Increase (which shall notify be a Business Day), provide an Incremental Term Loan in the amount specified therein and (if not an existing Lender) and become, and be deemed to be, a Lender for all purposes under this Agreement. Furthermore each Lender thereof. such Incremental Term Loan shall be, and shall be deemed to be, a Term Loan for all purposes of this Agreement.
(b) Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) Term Loan Increase pursuant to this Section shall become be effective under this paragraph unless, :
(i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with have given to the covenant contained in Section 9.3 and Administrative Agent written notice of its request for any such Term Loan Increase at least three Business Days prior to the relevant effective date of such Term Loan Increase;
(ii) the Administrative Agent shall have received documents an Incremental Term Loan Agreement executed by the Borrower, each applicable Additional Term Loan Lender in respect of such Term Loan Increase;
(iii) no Default shall have occurred and opinions consistent with those delivered be continuing on the such effective date of such Term Loan Increase; and
(iv) each of the representations and warranties of the Borrower contained in this Agreement shall be true on and as of such effective date of such Term Loan Increase with the same force and effect as if made on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date).
(c) Each notice under Section 2.18(b)(i) shall be deemed to constitute a representation and warranty by the Borrower as to the organizational power matters specified in Sections 2.18(b)(iii) and authority (iv) as of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderTerm Loan Increase.
Appears in 3 contracts
Sources: Term Loan Credit Agreement (PPG Industries Inc), Term Loan Credit Agreement (PPG Industries Inc), Term Loan Credit Agreement (PPG Industries Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case a minimum increments amount of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 and any integral of $5,000,000 in excess thereof, so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000100,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and the Issuing Banks to the extent the consent of the Issuing Banks would be required to effect an assignment under Section 9.04(b), and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G B hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H C hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.02 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Restatement Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Term Benchmark Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. In connection with any increase of the Commitments or Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 3 contracts
Sources: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Expansion Option. (a) The Borrower Company or Solvest may from time to time after the Closing Date elect to increase the Revolving Credit Commitments enter into one or more tranches of term loans denominated in minimum increments Dollars (each, an “Incremental Term Loan”), in each case in an aggregate principal amount of not less than $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of all such increases Incremental Term Loans (other than Refinancing Term Loans), when taken together with the aggregate principal amount of Incremental Substitute Indebtedness does not exceed (A) $50,000,000100,000,000, plus (B) an unlimited amount so long as on a Pro Forma Basis the First Lien Net Leverage Ratio as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time (and excluding the cash proceeds of the Incremental Term Loans from cash for purposes of such calculation) shall not exceed 4.00 to 1.0. The Borrower Company or Solvest, as applicable, may arrange for any such increase tranche to be provided by one or more Lenders (each Lender so agreeing to an increase participate in its Revolving Credit Commitmentsuch Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”), to participate in such Incremental Term Loan; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent (such consents not to be unreasonably withheld or delayed). Without the consent of any Lenders other than the relevant Increasing Lenders or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section 2.19 (including, if Solvest borrows any Incremental Term Loans, (i) to reflect that Solvest has become a borrower hereunder (it being understood that Solvest shall not be deemed to be a Loan Party for purposes of the restrictions set forth in Article VI) and (ii) (x) in to provide that Solvest and any Foreign Subsidiary that provides a guarantee of the case obligations of an Increasing Lender, Solvest with respect to the Borrower Incremental Term Loans shall have no obligations with respect to the Loans and other the Obligations of the Company and that such Increasing Lender execute an agreement substantially in Obligations of the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and Company shall not be recourse to Solvest or any such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoForeign Subsidiary). No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments New Incremental Term Loans created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) Incremental Term Loans shall become effective be permitted under this paragraph unless, (i) unless on the proposed date of the effectiveness of such increaseborrowing of such Incremental Term Loan, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders (or such other Lenders whose consent is required) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower Company; provided, that, if such Incremental Term Loans are being incurred to fund a Limited Condition Acquisition, then such certificate shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans dated as of the date of the definitive agreement in respect thereof and this condition shall only be required to be satisfied on such date. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, LIBOR notice requirements, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence. The terms of any increase Incremental Term Loans shall be as set forth in the Revolving Credit Commitments amendment to this Agreement providing for such Incremental Term Loans; provided that (with such reborrowing to consist i) the final maturity date of any Incremental Term Loans shall be no earlier than the Types of Revolving Credit LoansTerm Loan Maturity Date, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the immediately preceding sentence Tranche B Term Loans, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Tranche B Term Loans in any optional or mandatory prepayment hereunder, (iv) the provisions with respect to payment of interest, original issue discount (“OID”) and upfront fees shall be accompanied by payment of all accrued interest on as set forth in the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.amendment providing for such
Appears in 3 contracts
Sources: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC), Credit Agreement (Dole Food Co Inc)
Expansion Option. The Borrower may from time to time elect to increase Provided no Default exists beyond applicable notice and cure periods and the Revolving Credit Commitments Lease is in minimum increments of $25,000,000 full force and effect, provided Tenant (or such lesser amount as an Affiliate) is leasing and occupying the Administrative Agent may agree) so long asentire Relocation Premises, after by giving effect theretoLandlord written notice, if at all, on or before July 1, 2021, subject to existing rights of other tenants of the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase Building listed on Schedule 1 attached hereto, Tenant shall have the option to be provided by one or more Lenders expand the Premises (each Lender so agreeing to an increase in its Revolving Credit Commitment, an the “Increasing LenderExpansion Option”), or as provided herein. Tenant may exercise the Expansion Option, if at all, by one or more new banksgiving Landlord timely written notice (“Expansion Notice”). If Tenant exercises the Expansion Option, financial institutions or other entities the “Expansion Space” shall be Suite 1822 containing 1,801 rentable square feet, Suite 1810 containing approximately 9,132 rentable square feet, and Suite 1801 containing approximately 2,629 rentable square feet. The Expansion Space is shown on Exhibit C-1 attached hereto and made a part hereof. In the event that Tenant timely exercises the Expansion Option, then (each such new bank, financial institution or other entity, a) Landlord shall tender possession of the Expansion Space to Tenant in an “Augmenting Lender”; provided as-is, where is” condition so that no Ineligible Institution Tenant may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) perform any Tenant Work in the case of an Increasing LenderExpansion Space on or before April 1, 2022 (the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a“Expansion Delivery Date”) and (b) effective as of Section 6.2 July 1, 2022, subject to extension on a day by day basis for each day of Landlord Delay [for purposes of this reference to Landlord Delay, Delivery Date shall be satisfied or waived by replaced with the Required Lenders Expansion Delivery Date and Relocation Premises shall be replaced with Expansion Space] (the “Expansion Space Commencement Date”), the Expansion Space shall be added to, and constitute part of, the “Premises” leased hereunder, and the Administrative Agent same shall have received a certificate be leased upon and subject to that effect dated such date the same terms, provisions and executed by an Authorized Officer conditions as are applicable to the other portions of the Borrower Premises for the remainder of the Term of the Lease, except that Base Rent, rent abatement, and (B) concessions for the Borrower Expansion Space shall be in compliance with at the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCurrent Market Rate, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, determined in accordance with the requirements procedure set forth above in this Amendment. Promptly after Tenant exercises the Expansion Option and the parties determine the Current Market Rate, Landlord and Tenant shall execute an amendment to the Lease confirming the increase in the square footage of Section 2.9the Premises and all matters incident thereto (such as an increase in Tenant’s Pro Rata Share and Base Rent and a workletter to address payment of the construction allowance, if any); however, the failure of the parties to timely execute such amendment shall not defer the Expansion Space Commencement Date or otherwise invalidate this Lease or affect the parties’ rights or obligations hereunder. In the event demising work is necessary to accommodate Tenant’s exercise of its Expansion Option, then Landlord shall build a Building standard multi-tenant corridor (including without limitation construction of a demising wall and separation of the corridor from electrical, fire/life safety, HVAC, and other systems serving the Premises). The deemed payments made Such demising work shall be at Tenant’s expense, provided that Tenant may use the construction allowance to pay for such work. Furthermore, Tenant (and not Landlord) shall be responsible for drywall and finish on the side of the corridor located within the Premises. In no event shall Landlord be obligated to pay a commission with respect to any space leased by Tenant under this Section other than pursuant to clause (ii) a written commission agreement with Tenant’s designated broker who is actively involved in negotiations on Tenant’s behalf at the time and Tenant and Landlord shall each indemnify the other against all costs, expenses, attorneys’ fees, and other liability for commissions or other compensation claimed by any other broker or agent claiming the same by, through, or under the indemnifying party. Tenant’s rights under this Section are personal to the above-named Tenant, its Affiliates, and any successor Tenant after any Business Transfer in accordance with Section 11.04 of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderLease.
Appears in 3 contracts
Sources: Office Lease Agreement, Office Lease Agreement (Xeris Pharmaceuticals Inc), Office Lease Agreement (Xeris Pharmaceuticals Inc)
Expansion Option. The Borrower may from time 8.1. Subject to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs this Article 8 and the availability of the Expansion Space (as defined below), Tenant shall have the right, but not the obligation, to expand the Premises (the “Expansion Option”) to include the spaces known as Suite 220B and 220C, as such space is more particularly shown on the floor plan attached hereto as Exhibit C (the “Expansion Space”).
8.2. Landlord shall notify Tenant in writing if the Expansion Space becomes available. Tenant may exercise the Expansion Option by providing Landlord, no later than fifteen (15) days after Landlord’s notice, with written notice that Tenant has elected to exercise the Expansion Option. Within ten (10) days after exercising the Expansion Option, Tenant and Landlord shall enter into a written amendment to the Lease (the “Amendment”). which amendment shall provide, unless otherwise agreed in writing, (a) and the commencement date of the Expansion Space, (b) of Section 6.2 that the Premises under this Lease shall be satisfied increased to include the rentable square feet of the Expansion Space, (c) the new Base Rent, with the Expansion Space increasing Base Rent at the then-current rental rate per square foot under the Lease, (d) Tenant’s new Pro Rata Share of Operating Expenses based upon the addition of the Expansion Space to the Premises and (e) the proportionate increase to the Security Deposit (which increase shall be payable to Landlord upon execution of the Amendment). In all other respects, the Lease, as amended by this Amendment, shall remain in full force and effect.
8.3. Notwithstanding anything in this Article to the contrary, Tenant shall not exercise the Expansion Option during such period of time that Tenant is in default under any provision of this Lease. Any attempted exercise of the Expansion Option during a period of time in which Tenant is so in default shall be void and of no effect. In addition, Tenant shall not be entitled to exercise the Expansion Option if Landlord has given Tenant three (3) or waived by more notices of default under the Required Lenders and Lease, whether or not the Administrative Agent defaults are cured.
8.4. If Tenant properly exercises its Expansion Option, Tenant shall have received a certificate the right to that effect dated such date and executed by an Authorized Officer of terminate the Borrower and (B) the Borrower shall be in compliance Lease with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as respect to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all Premises known as Suite 216 (except for those provisions that, by their express terms, survive the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as expiration or earlier termination of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9Lease). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 3 contracts
Sources: Lease (Tocagen Inc), Lease (Tocagen Inc), Lease (Tocagen Inc)
Expansion Option. 44.1 Subject to the conditions set forth in this Article 44, Tenant shall have the right, but not the obligation, to expand the Premises (the “Expansion Option”) to include space in the basement or on the first floor of the Building (the “Potential Expansion Area”). The Borrower portion of the Potential Expansion Area added to the Premises by exercise of the Expansion Option shall herein be referred to as the “Expansion Premises”.
44.2 Tenant may from exercise its Expansion Option under this Article 44 for any portion of the Potential Expansion Area that remains Available Space by providing Landlord with written notice (the “Expansion Option Exercise Notice”) that Tenant has elected to exercise its Expansion Option for such space. A portion of the space in the Building shall be deemed “Available Space” if such portion is vacant and Tenant has not received a Notice of Offer in accordance with Article 43 with respect to such portion.
44.3 Tenant acknowledges that Landlord shall have the right at any time in its sole and absolute discretion to make improvements in addition to the Core and Shell Work to any portion of the Potential Expansion Area for which Tenant has not exercised its Expansion Option such that such portion of the Potential Expansion Area will be ready for tenant occupancy (even if such portion of the Potential Expansion Area will not be suitable for Tenant’s use) (such improvements, “Spec Improvements”). If Landlord intends to make Spec Improvements to any portion of the Potential Expansion Area, then Landlord shall endeavor to provide written notice to Tenant when Landlord applies for a building permit for the Spec Improvements, which notice shall state Landlord’s intent to complete such Spec Improvements in such portion of the Potential Expansion Area (such portion of the Potential Expansion Area that is described in a Spec Space Notice (as defined below) as the portion that will be so improved, a “Spec Space Area”), and specify the general nature of the Spec Improvements and the Spec Space Area (such notice, a “Spec Space Notice”). If Tenant desires to lease less than all of the Spec Space Area, then the Expansion Premises shall be determined in accordance with Section 44.4, and such Spec Space Area shall be the Expansion Premises hereunder. If Tenant delivers an Expansion Option Exercise Notice with respect to any Spec Space Area before Landlord commences the Spec Improvements in such Spec Space Area, then, in its Expansion Option Exercise Notice, Tenant may clearly and explicitly notify Landlord that Tenant does not desire Landlord to complete the Spec Improvements (a “Non-Spec Election”), and if Tenant timely provides such notice to Landlord, then Landlord shall not perform the Spec Improvements in such Spec Space Area, and instead the improvement of such Spec Space shall be governed by Section 44.5. If Tenant does not make a Non-Spec Election in Tenant’s Expansion Option Exercise Notice, then Landlord shall perform the Spec Improvements in such Spec Space Area (a “Leased Spec Area”), and shall not be required to perform any improvements in addition to the Core and Shell Work and the Spec Improvements, and Tenant shall not be entitled to any TI Allowance for the Leased Spec Area.
44.4 If Tenant exercises its Expansion Option in accordance with Section 44.2 hereof with respect to:
(a) any Spec Space Area, then Tenant shall, in its Expansion Option Exercise Notice, specify the number of square feet of Rentable Area of Spec Space Area that Tenant requires. It Tenant requests less than the entire Rentable Area of Spec Space Area in its Expansion Option Exercise Notice, then Landlord shall subsequently designate as the Expansion Premises a portion of such Spec Space Area, reasonably suitable for leasing and comprised of a number of square feet of Rentable Area that is approximately the same as the number of square feet of Rentable Area that is specified by Tenant in its Expansion Option Exercise Notice, but only if there is Spec Space Area that meets each of the following requirements:
(i) The Rentable Area of such space is approximately the same as the Rentable Area designated by Tenant in its Expansion Option Exercise Notice; and
(ii) Landlord can separately demise such space in a reasonable manner so that (i) such space and (ii) the remaining space located on such floor of the Building (if any) are of a commercially reasonable and marketable configuration and are suitable for leasing, including having access to the common areas on the applicable floor (in the case of (ii) above, without reducing the rent per square foot that such remaining space would be expected to attain on the open market).
(b) any portion of the Potential Expansion Area for which Landlord has not delivered a Spec Space Notice and which is Available Space (“Available Non-Spec Space”), then Tenant shall, in its Expansion Option Exercise Notice, specify the number of square feet of Rentable Area of Available Non-Spec Space that Tenant requires. Landlord shall subsequently designate as the Expansion Premises a portion of the Potential Expansion Area that is Available Non-Spec Space, reasonably suitable for leasing and comprised of a number of square feet of Rentable Area that is approximately the same as the number of square feet of Rentable Area that is specified by Tenant in its Expansion Option Exercise Notice, but only if there is Potential Expansion Area that meets each of the following requirements:
(i) The Rentable Area of such space is approximately the same as the Rentable Area designated by Tenant in its Expansion Option Exercise Notice;
(ii) Landlord can separately demise such space in a reasonable manner so that (i) such space and (ii) the remaining space located on such floor of the Building (if any) are of a commercially reasonable and marketable configuration and are suitable for leasing, including having access to the common areas on the applicable floor (in the case of (ii) above, without reducing the rent per square foot that such remaining space would be expected to attain on the open market);
(iii) Such space is Available Non-Spec Space; and
(iv) Landlord has not delivered a Spec Space Notice with respect to such space. Tenant shall pay all costs and expenses of separately demising the Expansion Premises.
44.5 In the event Tenant exercises its Expansion Option in accordance with the terms of this Article 44 with respect to Available Non-Spec Space or any Spec Space Area for which Tenant has made a Non-Spec Election, Tenant may, by providing written notice to Landlord at any time elect during the twelve (12) month period (the “Expansion Tenant Improvement Election Period”) immediately following the later of the date of the Expansion Option Exercise Notice provided by Tenant to increase Landlord for such space or Substantial Completion of the Revolving Credit Commitments Core and Shell Work, request in minimum increments writing (the “Expansion Premises TI Notice”) that Landlord construct tenant improvements to such Expansion Premises in accordance with the terms of $25,000,000 Article 4 of this Lease and the Work Letter (with such modifications thereto as may reasonably be necessary to reflect that the Tenant Improvements for such Expansion Premises will be governed by this Article 44 to the extent inconsistent with Article 44); provided, however, Tenant shall deliver its Draft Plans for the Expansion Premises Tenant Improvements to Landlord within sixty (60) days after Tenant provides its Expansion Premises TI Notice for such Expansion Premises to Landlord; provided, further, that the TI Allowance for such Expansion Premises shall be treated separately for such Expansion Premises and determined based on the rentable square footage of the Expansion Premises; provided, further, that Tenant shall have until the earlier of (a) the occurrence of a Default after notice and the lapse of any applicable cure periods (which shall be the notice and cure periods specified in Article 25 and not additional notice or cure periods) or (b) the expiration of the Expansion Tenant Improvement Election Period, to expend the unused portion of any TI Allowance with respect to such Expansion Premises, after which date Landlord’s obligation to fund the TI Allowance for such Expansion Premises shall expire, and any Tenant Improvements made by Landlord to the applicable Expansion Premises after such date shall be made at Tenant’s sole cost and expense. Tenant and Landlord shall amend the Work Letter to incorporate any additional tenant improvements requested by Tenant in accordance with this Section 44.5 within ten (10) days following Tenant’s provision of such notice to Landlord.
44.6 Within ten (10) days after exercising the Expansion Option, Tenant and Landlord shall enter into a written amendment to this Lease (the “Amendment”), which Amendment shall provide, unless otherwise agreed in writing:
(a) that the term commencement date for the Expansion Premises (the “Expansion Space Term Commencement Date”) shall be the later of (i) the date of Substantial Completion of the Core and Shell Work and Tenant Improvements (or Spec Improvements in lieu of Tenant Improvements for any Leased Spec Area) for the Expansion Premises or (ii) the Term Commencement Date for the initial Premises;
(b) that the Premises under this Lease shall be increased to include the Expansion Premises as of the Expansion Space Term Commencement Date;
(c) that the Rentable Area of the Premises shall be increased to reflect the inclusion of the Rentable Area of the Expansion Premises as of the Expansion Space Term Commencement Date;
(d) the new Basic Annual Rent, with the Expansion Premises increasing the Basic Annual Rent as set forth in Section 44.8 hereof, provided, however, that if a Fair Market Rental Value determination is required in connection with such lesser amount as increase and the Administrative Agent may agree) so long as, after giving effect theretonew Basic Annual Rent is therefore not known at the time of execution of the Amendment, the aggregate Amendment shall indicate that the new Basic Annual Rent shall be determined in accordance with Section 44.8 of this Lease;
(e) unless such Expansion Premises are Leased Spec Area, that Tenant shall commence paying Basic Annual Rent, and Tenant’s Share of Operating Expenses, for any Expansion Premises commencing upon the later of (i) ten (10) days following the date of the Expansion Option Exercise Notice provided by Tenant to Landlord with respect to the Expansion Premises, or (ii) eight (8) months following the the later of (A) the date of the Expansion Option Exercise Notice provided by Tenant to Landlord with respect to the Expansion Premises, or (B)the Substantial Completion of the Core and Shell Work for such Expansion Premises, or (iii) the Rent Commencement Date;
(f) if such Expansion Premises are Leased Spec Area, that Tenant shall commence paying Basic Annual Rent, and Tenant’s Share of Operating Expenses, for any Expansion Premises commencing upon the later of (i) ten (10) days following the date of the Expansion Option Exercise Notice provided by Tenant to Landlord with respect to the Expansion Premises, or (ii) Substantial Completion of the Spec Improvements for the Leased Spec Area, or (iii) the Rent Commencement Date;
(g) Tenant’s new Pro Rata Share of Operating Expenses based upon the addition of the Rentable Area of the Expansion Premises to the Premises;
(h) the proportionate increase to the Security Deposit (which increase shall be payable to Landlord upon execution of the Amendment); and
(i) the amount of such increases does not exceed $50,000,000. The Borrower may arrange the Initial TI Allowance and Additional TI Allowance (which amount shall exclude any TI Allowance for Leased Spec Space).
44.7 Landlord shall endeavor to tender possession of the Expansion Premises (with the Tenant Improvements thereto (or Spec Improvements in lieu of Tenant Improvements for any Leased Spec Area) Substantially Complete) to Tenant on or before the estimated delivery date for the Expansion Premises (the “Expansion Estimated Delivery Date”). If the Tenant Improvements (or Spec Improvements in lieu of Tenant Improvements for any Leased Spec Area) are not Substantially Complete on or before the Expansion Estimated Delivery Date for any reason whatsoever, then this Lease shall not be void or voidable, Landlord shall not be liable to Tenant for any loss or damage resulting therefrom, and the Expansion Space Term Commencement Date shall not occur until Substantial Completion of the Tenant Improvements for the Expansion Premises occurs. Substantial Completion of Tenant Improvements for the Expansion Premises shall be determined separately from Substantial Completion for the remainder of the Premises.
44.8 The initial Basic Annual Rent for the Expansion Premises shall be calculated as follows:
(a) Unless the Expansion Premises is Leased Spec Area:
(i) if the Expansion Option is exercised from and after the Execution Date until the Term Commencement Date, then the initial Basic Annual Rent for such increase Expansion Premises shall be the rental rate per square foot of Rentable Area of the Expansion Premises set forth in Section 2.3 hereof;
(ii) if the Expansion Option is exercised from and after the Teen Commencement Date until the first anniversary of the Term Commencement Date, then the initial Basic Annual Rent for such Expansion Premises shall be the Fair Market Rental Value of the Expansion Premises (not to exceed 110% of the initial Basic Annual Rent per square foot of Rentable Area set forth in Section 2.3 hereof);
(iii) if the Expansion Option is exercised after the first anniversary of the Term Commencement Date, then the initial Basic Annual Rent for such Expansion Premises shall be the Fair Market Rental Value of the Expansion Premises; and
(b) If the Expansion Premises is Leased Spec Space, then the initial Basic Annual Rent for such Expansion Premises shall be the Fair Market Rental Value for such space and improvements thereto with respect to such space, in which case Tenant shall not be entitled to any TI Allowance in connection with such Expansion Premises. Basic Annual Rent for the Expansion Premises shall escalate in accordance with Article 7 of this Lease. For purposes of this Article 44, the term “Fair Market Rental Value” of the Expansion Premises is the greater of (a) the rental rate per square foot of Rentable Area of the Expansion Premises set forth in Section 2.3 hereof, or (b) the rental rate, determined in accordance with this Article 44, at which tenants are leasing Comparable Space on the Expansion Space Term Commencement Date. For this purpose, “Comparable Space” shall mean office and laboratory space that is (v) not subleased, (w) not subject to another tenant’s expansion rights, (x) comparable in size, location and quality to the Expansion Premises, (y) leased for a term comparable to Tenant’s lease of the Expansion Premises and (z) located in the Building and in other comparable office and laboratory projects located in the Seattle, Washington area. In determining the rental rate of Comparable Space, the parties shall exclude brokerage commissions and shall include all escalations and take into consideration the following concessions: (i) rental abatement concessions, if any, being granted to tenants in connection with the Comparable Space and (ii) tenant improvements or allowances provided or to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitmentfor the Comparable Space, an “Increasing Lender”)taking into account the TI Allowance for, or by one or more new banksvalue of the Spec Improvements in, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitmentsthe Expansion Premises, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval . For any portion of the Borrower, each Letter of Credit Issuer Expansion Premises for which Tenant has exercised its Expansion Option Exercise Notice and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall for which Basic Annual Rent will be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective determined based on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date Fair Market Rental Value of the effectiveness Expansion Premises, Landlord shall provide written notice to Tenant of Landlord’s determination of the Fair Market Rental Value (“LL FMV Notice”) within fifteen (15) business days following Landlord’s receipt of such increase, (A) Expansion Option Exercise Notice from Tenant. If Tenant disagrees with Landlord’s determination of the conditions Fair Market Rental Value of the portion of the Expansion Premises as set forth in paragraphs the LL FMV Notice, then Tenant shall provide written notice to Landlord within ten (a10) and days following Tenant’s receipt of the LL FMV Notice notifying Landlord thereof (b) of Section 6.2 shall be satisfied or waived “Tenant FMV Objection Notice”). If Tenant does not deliver its Tenant FMV Objection Notice to Landlord by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use end of such amounts to make payments to such other Lendersten (10) day period, each Lender’s portion then the Fair Market Rental Value of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.the
Appears in 3 contracts
Sources: Lease (NanoString Technologies Inc), Lease (NanoString Technologies Inc), Lease (NanoString Technologies Inc)
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000300,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (other than an Ineligible Institution) (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, Lender shall be subject to the approval of the BorrowerCompany, each Letter of Credit Issuer JPMorgan and the Administrative Agent and Agent, (ii) no Augmenting Lender shall be an Ineligible Institution and (xiii)(x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, JPMorgan, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.13 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, JPMorgan and the Administrative Agent. The Incremental Term Loan 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 JPMorgan or the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. In connection with any increase of the Commitments or Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. SECTION 2.21. [Intentionally Omitted].
Appears in 2 contracts
Sources: Credit Agreement (Worthington Industries Inc), Credit Agreement (Worthington Industries Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that If (i) each Augmenting Lenderno event of default in respect of Tenant, shall be subject to the approval of the Borroweras defined in Section 12.01, each Letter of Credit Issuer has occurred and the Administrative Agent and is continuing, (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoTenant has exercised its first Extension Option, and (yiii) space is available for lease in the case Building (Tenant expressly acknowledging that all rights of an Augmenting LenderTenant to expand the Premises are subject and subordinate to the prior expansion rights of McGuireWoods, LLP and ▇▇▇▇▇▇▇▇▇ & Company LLC, and their successors or assigns), Tenant shall have the Borrower and such Augmenting Lender execute an agreement substantially right (the “Expansion Option”) to expand the Premises by adding thereto up to 8,000 rentable square feet of space (subject to adjustment to the extent permitted below) located in the form Building (location to be determined by Landlord based on location of Exhibit H heretoavailable of space) (the “Expansion Space”). No consent Upon written request by Tenant (which request must be made not more than twelve (12) months nor less than six (6) months prior to the commencement date of any Lender the first Extension Period, time being of the essence), Landlord shall give written notice (the “Expansion Notice”) to Tenant stating (i) whether the conditions to the Expansion Option set forth above (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date exercise of the effectiveness of such increase, (Afirst Extension Option) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loansbeen satisfied, and (ii) if so, the Borrower location and dimensions of the Expansion Space, as increased or decreased by up to 1,000 rentable square feet, as hereinafter contemplated. If the Expansion Notice states that the conditions to the Expansion Option (other than exercise of the first Extension Option) have been satisfied, and Tenant desires to exercise the Expansion Option, it must do so by written notice to Landlord within thirty (30) days after the later to occur of (A) Tenant receiving the Expansion Notice specifying the location and dimensions of the Expansion Space, as so increased or decreased, or (B) Tenant giving notice of exercise of the first Extension Option, time being of the essence. If Tenant requests that Landlord provide an Expansion Notice as provided above, Tenant’s request shall state the rentable square footage of Expansion Space that Tenant desires to lease, which may not exceed 8,000 rentable square feet. If Tenant exercises the Expansion Option as provided above, such Expansion Space shall be deemed leased to have repaid and reborrowed all outstanding Revolving Credit Loans Tenant as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last first day of the related LIBOR Periodsfirst Extension Period under the terms of the Lease applicable to the original Premises, except that the Expansion Space shall be leased to Tenant in its “AS IS” condition, and Landlord shall have no obligation to improve or pay any allowance for improving the Expansion Space. Nothing contained In addition, Landlord may increase or decrease the size of the Expansion Space requested by Tenant by up to 1,000 rentable square feet, and such proposed increase shall be reflected in the Expansion Notice. As an example, if Tenant requests that the Expansion Space contain 8,000 rentable square feet, it is the intent of the parties that the Expansion Space, as depicted in the Expansion Notice, will contain not fewer than 7,000 rentable square feet and not more than 9,000 rentable square feet. Base Rent for the Expansion Space shall at all times be at the same rate per rentable square foot applicable to the original Premises (giving effect to all increases in such rate of Base Rent as provided in this Section 2.15 Lease). For the first Extension Period, Base Rent for the original Premises established at set forth above shall constitutebe further increased to reflect Base Rent for the Expansion Space at the same rate per rentable square foot applicable to the original Premises (giving effect to all increases in such rate of Base Rent as provided in this Lease). For the second Extension Period, or otherwise if the second Extension Option is exercised by Tenant, Base Rent shall be deemed established for the Premises, as expanded by the Expansion Space, as set forth above. Base Rent for the Expansion Space shall commence upon delivery of said space to beTenant. Tenant shall also pay Tenant’s Share of Increases in Operating Costs for the Expansion Space, a commitment on the part of any Lender with Tenant’s Proportionate Share to increase its Revolving Credit Commitment hereunderto reflect the area of the Expansion Space and be confirmed in a written notice from Landlord to Tenant.
Appears in 2 contracts
Sources: Deed of Lease (Xenith Bankshares, Inc.), Deed of Lease (Xenith Bankshares, Inc.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case a minimum increments amount of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 and any integral of $5,000,000 in excess thereof, so long as, after giving effect thereto, the aggregate amount of such increases Incremental Term Loans does not exceed $50,000,0000. The Borrower may arrange for any such increase tranche to be provided by one or more Lenders (each Lender so agreeing to an increase participate in its Revolving Credit Commitmentsuch Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may beparticipate in such Incremental Term Loans; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent Agent, and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G B hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H C hereto. No consent of any Lender (other than the Lenders participating in the increaseany Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment tranche of any Lender) Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseIncremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.02 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increaseIncremental Term Loans. On The Incremental Term Loans (a) shall rank pari passu in right of payment with the effective date of Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any increase in event no more favorably than) the Revolving Credit Commitments, Loans; provided that (i) each relevant Increasing Lender the terms and Augmenting Lender shall make available conditions applicable to any tranche of Incremental Term Loans maturing after the Administrative Agent such amounts in immediately available funds as Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, Maturity Date and (ii) the Borrower shall Incremental Term Loans may be deemed priced differently than the Loans. Incremental Term Loans may be made hereunder pursuant to have repaid and reborrowed all outstanding Revolving Credit Loans an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as of appropriate, the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loansother Loan Documents, with related LIBOR Periods if applicable, specified in a notice delivered executed by the Borrower, each Increasing Lender participating in accordance with such tranche, each Augmenting Lender participating in such tranche, if any, and the requirements of Section 2.9)Administrative Agent. The deemed payments made pursuant Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to clause (ii) this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid andAdministrative Agent, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to effect the provisions of this Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase provide Incremental Term Loans, at any time. In connection with any Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its Revolving Credit Commitment hereundername, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (Northwest Natural Gas Co), Credit Agreement (Northwest Natural Gas Co)
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000250,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the each Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the each Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.16 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the each Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, each Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of Company Revolving Loans and/or Canadian Revolving Loans, as applicable, of the Types of Revolving Credit Loansand having related Interest Periods, with related LIBOR Periods if applicable, specified in a notice delivered by the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan or BA Equivalent Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) may be incurred only by the Company, (b) shall rank pari passu in right of payment with the Revolving Loans, (c) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by each Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 2 contracts
Sources: Credit Agreement (Watsco Inc), Credit Agreement (Watsco Inc)
Expansion Option. The Borrower may from time Section 33.1 Subject to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long asterms and provisions hereof, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; and provided that (i) each Augmenting Lenderthis Lease is then in full force and effect, (ii) no uncured monetary Event of Default then exists hereunder and provided that there are no outstanding mechanic’s lien, financing statement or other lien, charge or order in existence filed against Landlord, or against ail or any portion of the Premises, the Building or the Real Property due to any act or omission of Tenant or any Tenant Party, that has not been actually released and discharged of record or bonded or insured over to the reasonable satisfaction of Landlord, and (iii) Tenant is in actual physical occupancy of at least 75% of the Premises, Tenant is hereby granted the one-time option (the “Expansion Option”) to lease 14,480 Rentable Square Feet as an entirety on the third floor of the Building as shown on Exhibit G annexed hereto (the “Expansion Space”), which space constitutes a portion of the space currently leased by Landlord to Bankers Life and Casualty Company (“Bankers”). Landlord represents to Tenant that Bankers’ lease with respect to the Expansion Space expires on November 30, 2013 and Bankers does not have the right or option to renew or extend the term of its lease as to the Expansion Space. The Expansion Option shall be exercisable by Tenant’s giving irrevocable written notice to Landlord (the “Expansion Notice”) of Tenant’s election so to do on or before January 1, 2013. Anything contained in this ARTICLE 33 to the contrary notwithstanding, Tenant shall not have the right to exercise the Expansion Option, and the Expansion Option shall be deemed to have been irrevocably waived, unless Tenant shall have exercised the Renewal Option prior to or simultaneously with Tenant’s exercise of the Expansion Option.
Section 33.2 Landlord shall lease the Expansion Space to Tenant on all of the same terms, covenants and conditions as set forth in this Lease except: (i) Fixed Rent for the Expansion Space shall be equal to then escalated per Rentable Square Foot Fixed Rent for the Premises in effect as of the date (the “Expansion Space Inclusion Date”) on which Landlord delivers vacant possession of the Expansion Space to Tenant, which Fixed Rent shall be subject to the approval of the Borrowersame $.50 per Rentable Square Foot escalation on April 1, each Letter of Credit Issuer 2014, April 1, 2015, April 1, 2016 and the Administrative Agent and April 1, 2017; (ii) Tenant shall not be entitled to any Rent Credit, free rent or rent abatement for the Expansion Space; (iii) Tenant’s obligation to pay Rent for the Expansion Space shall commence on the date on which Landlord delivers vacant possession of the Expansion Space to Tenant; (iv) the term of this Lease in respect of the Expansion Space (x) in shall commence on the case date on which Landlord delivers vacant possession of an Increasing Lenderthe Expansion Space to Tenant (it being understood and agreed that Landlord shall have no liability to Tenant by reason of Landlord’s inability to deliver vacant possession of the Expansion Space to Tenant by reason of the holding over of the existing tenant, subtenant(s) or occupant(s) of the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoExpansion Space or any other reason), and (y) shall expire on April 5, 2017; (v) Landlord shall have no obligation to perform any Landlord’s Work or other-Landlord’s work or preparatory work in or to the Expansion Space or the Building in connection with Tenant’s lease of the Expansion Space; (vi) as Landlord’s sole Landlord’s Contribution or work contribution in respect of the Expansion Space, Landlord shall provide Tenant with a Landlord Contribution for the Expansion Space (“Landlord’s Expansion Space Contribution”) equal to the product of (A) $506,800.00, multiplied by (B) a fraction, the numerator of which shall be the number of months (including partial months) in the case term of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in lease of the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting LendersExpansion Space, and the Administrative Agent denominator of which shall notify each Lender thereofbe 60, but in no event shall Landlord’s Expansion Space Contribution exceed the cost of Tenant’s Initial Alterations in the Expansion Space and the provisions of this Lease shall be applicable to Tenant’s requisition of and the conditions for Landlord’s payment of Landlord’s Contribution for the Expansion Space; (vii) Tenant’s Proportionate Share shall increase to reflect the addition of the Expansion Space to the Premises; and (viii) Tenant shall not be required to deliver to Landlord a security deposit in connection with Tenant’s lease of the Expansion Space. Notwithstanding anything to the foregoingcontrary contained in this Article 33, no increase if the Expansion Space Inclusion Date shall not occur on or before February 1, 2014, because of the holding over of the existing tenant, subtenant(s) or occupant(s) of the Expansion Space or for any other reason (excluding the intentional acts or omissions of Landlord or the fault of Tenant or due to Tenant or anyone on account of Tenant being in possession of the Revolving Credit Commitments Expansion Space or any portion thereof), then, Tenant shall have the right, as Tenant’s sole and exclusive remedies hereunder, by written notice given to Landlord after February 1, 2014, but on or before February 15, 2014 to either (or in time being of the Revolving Credit Commitment of any Lenderessence as to the date by which Tenant must exercise either such remedy) shall become effective under this paragraph unless, (i) on substitute the proposed “February 1, 2014” date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by above with the Required Lenders date “April 1, 2014” and the Administrative Agent shall have received a certificate to that effect dated such “February 15, 2014” date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant date “April 15, 2014” and Tenant shall again have the same rights contained in Section 9.3 and subparagraph (ii) the Administrative Agent shall have received documents below as its sole and opinions consistent exclusive remedy with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect respect to such increase. On the effective date of any increase in the Revolving Credit Commitmentslater dates, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and or (ii) elect to rescind the Borrower exercise of its option to lease the Expansion Space by written notice given to Landlord after February 1, 2014, but on or before February 28, 2014, provided that if the Expansion Space Inclusion Date shall occur after February 1, 2014, but prior to the date upon which Tenant shall have given written notice of its election under this subdivision (ii) to rescind the exercise of its option to lease the Expansion Space as aforesaid, then Tenant shall have waived and relinquished its right to rescind the exercise of its option to lease the Expansion Space under this subdivision (ii) and the exercise of its option to lease the Expansion Space shall remain in full force and effect on all of its terms.
Section 33.3 If Tenant timely gives Landlord the Expansion Notice, then Landlord and Tenant shall promptly execute an amendment to this Lease to reflect the demise of the Expansion Space to Tenant, but the failure to do so shall not impair, affect or reduce the parties’ obligations with respect to the lease of such Expansion Space.
Section 33.4 If Tenant does not timely give Landlord the Expansion Notice, then Tenant shall be deemed to have repaid elected not to lease the Expansion Space, Tenant’s right to lease the Expansion Space shall automatically terminate and reborrowed Tenant will have no further right or option to lease the Expansion Space under this ARTICLE 33 or otherwise.
Section 33.5 Notwithstanding the foregoing, Tenant shall not have the right to exercise its option to lease the Expansion Space, and Landlord shall not be required to lease the Expansion Space to Tenant if a monetary Event of Default shall exist at the time the Expansion Notice is given by Tenant or on November 30, 2013, or if there are any outstanding mechanic’s liens, financing statements or other lien, charge or order in existence filed against Landlord, or against all outstanding Revolving Credit Loans as or any portion of the date Premises, the Building or the Real Property due to any act or omission of Tenant or any Tenant Party, that has not been actually released and discharged of record or bonded or insured over to the reasonable satisfaction of Landlord at the time the Expansion Notice is given by Tenant or on November 30, 2013. In the event of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loansforegoing shall occur, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of it shall serve to automatically terminate Tenant’s rights under this ARTICLE 33.
Section 2.9). 33.6 The deemed payments made rights conferred upon Tenant pursuant to clause this ARTICLE 33 are personal to Tenant and are not assignable or transferable to any assignee or sublease (iiregardless of whether any such assignment or sublease was made with or without Landlord’s consent) or other party.
Section 33.7 Time is of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in essence with respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the dates, terms and provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderARTICLE 33.
Appears in 2 contracts
Sources: Lease Agreement (Groupon, Inc.), Lease Agreement (Groupon, Inc.)
Expansion Option. (a) The Borrower Representative may from time to time elect time, upon three Business Days’ notice (or such shorter period as the Administrative Agent accepts in its sole discretion) to the Administrative Agent (or such lesser notice as agreed to by the Administrative Agent), add one or more additional tranches of incremental term facilities and/or increase the Revolving Credit Commitments principal amount of the Term Loans of any existing class by requesting new term loan commitments to provide such Term Loans (any such new tranche or increase, an “Incremental Facility” and any loans made pursuant to an Incremental Facility, “Incremental Term Loans”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000, so long as, after giving effect thereto, the aggregate amount of all such increases Incremental Term Loans does not exceed $50,000,000the Incremental Cap. The Borrower Representative may arrange for any such increase tranche or increase, as the case may be, to be provided by one or more Lenders (each Lender so agreeing to an increase participate in its Revolving Credit Commitmentsuch Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower Representative and the Administrative Agent (such approvals not to be unreasonably withheld or delayed) and (ii) (x) in the case of an Increasing Lender, the Borrower Representative and such Increasing Lender shall execute an agreement substantially in the form of Exhibit G B hereto, and (y) in the case of an Augmenting Lender, the Borrower Representative and such Augmenting Lender shall execute an agreement substantially in the form of Exhibit H C hereto. No consent of any Lender (other than the Lenders participating in the increasesuch Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments Incremental Term Loan pursuant to this Section 2.152.22. Increases and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.22 shall become effective on the date agreed by the BorrowerBorrower Representative, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Chefs' Warehouse, Inc.), Credit Agreement (Chefs' Warehouse, Inc.)
Expansion Option. The Borrower may from time As long as Subtenant is not in default, beyond any applicable notice and cure period, Subtenant shall have, and Sublandlord hereby grants to time elect to increase Subtenant, a continuous expansion option (the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderExpansion Option”), exercisable by written notice to Sublandlord at any time during the Sublease Term, to sublease the remaining 4th floor of the Building (or by one or more new banksa portion thereof) containing approximately 6,054 rentable square feet for the remainder of the Sublease Term, financial institutions at the same rental rate and upon the same terms and conditions as provided in this Sublease (the “Expansion Space”) to the extent the same is available for sublease and Sublandlord has not entered into any sublease or other entities agreement regarding the occupancy of such space. Additionally, if at any time during the Sublease Term, Sublandlord desires to sublease the Expansion Space or any portion thereof to any third party (each such new bank, financial institution or other entity, an a “Augmenting LenderProspective Subtenant”; provided that no Ineligible Institution may be an Augmenting Lender), which agree Sublandlord shall provide written notice to increase their existing Revolving Credit CommitmentsSubtenant prior to making any offers (or requests for offers) to, or provide new Revolving Credit Commitmentsaccepting any unsolicited offers from, as Prospective Subtenants regarding such Expansion Space, and Subtenant may exercise its Expansion Option by giving written notice to Sublandlord within ten (10) business days after receipt of such notice that Subtenant elects to sublease the case may be; provided that Expansion Space or applicable portion thereof. If Subtenant does not exercise the Expansion Option within such ten (i10) each Augmenting Lenderbusiness day period, then Sublandlord shall be free to offer the applicable portion of the Expansion Space to a Prospective Subtenant; provided, however, that if Sublandlord does not enter a sublease with a Prospective Subtenant within ninety (90) days after providing the original notice to Subtenant, Sublandlord shall again comply with the terms of this Section 17 with respect to such Expansion Space. If Subtenant exercises its Expansion Option, Sublandlord shall deliver the Expansion Space in its “AS IS” condition to Subtenant within thirty (30) days thereafter (subject to Prime Landlord’s consent, to the approval extent such consent is required). Subtenant shall commence paying Sublease Rent with respect to the Expansion Space upon the date the Expansion Space is delivered to Subtenant or such earlier date upon which Subtenant occupies or uses any portion of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereofExpansion Space. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (if Subtenant occupies or in the Revolving Credit Commitment of uses any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all Expansion Space without having first exercised its Expansion Option, Sublandlord, at its option, may deem such use or occupancy by Subtenant to be an election by Subtenant to exercise its Expansion Option and immediately upon written notice from Sublandlord to Subtenant, Subtenant shall commence paying Sublease Rent with respect to the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower Expansion Space. Nothing herein shall be deemed construed to have repaid and reborrowed all outstanding Revolving Credit Loans as permit Subtenant to use or occupy any portion of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant Expansion Space prior to the provisions actual exercise by Subtenant of Section 2.11 if its Expansion Option. Sublandlord and Subtenant acknowledge that the deemed payment occurs other than on Sublease Premises are not separately demised from the last day of Expansion Space. Prior to subleasing the related LIBOR Periods. Nothing contained in this Section 2.15 Expansion Space to a thirty party, Sublandlord agrees to construct demising walls, at its cost, to separate the Sublease Premises from the Expansion Space, provided that Sublandlord shall constitute, or otherwise be deemed have no obligation to be, construct any demising walls unless and until such subleasing to a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderthird party occurs.
Appears in 2 contracts
Sources: Sublease Agreement, Sublease Agreement (Tier Technologies Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G E hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H F hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.21. Increases Increased and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.21 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.14 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase, to the extent requested by the Administrative Agent. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.21. Nothing contained in this Section 2.15 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 2 contracts
Sources: Credit Agreement (National General Holdings Corp.), Credit Agreement (National General Holdings Corp.)
Expansion Option. The Borrower Borrowers may from time to time (other than during the Covenant Relief Period) elect to increase (an “Incremental Increase”) the Revolving Credit total Dollar Tranche Commitments or the total Multicurrency Tranche Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans (other than the Incremental US Term Loans) plus the aggregate principal amount of all Incremental Equivalent Debt incurred on or prior to such date does not exceed $50,000,000the Incremental Amount then in effect. The Borrower Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entityentity that constitutes a Qualifying Bank, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree other than an Ineligible Institution, to increase their existing Revolving Credit Commitments, or provide new to participate in such Incremental Term Loans, or extend Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the BorrowerCompany, each Letter the Administrative Agent, the Issuing Banks (in the case of Credit Issuer an increase in the Revolving Commitments) and the Administrative Agent Swingline Lender (in the case of an increase in the Revolving Commitments), (ii) no Augmenting Lender shall be the Company or any Subsidiary or Affiliate of the Company and (iiiii) (x) in the case of an Increasing Lender, the applicable Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the applicable Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the applicable Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower Company; provided, however that in the case of any Incremental Increase the proceeds of which are to be used to finance a substantially concurrent Permitted Acquisition that is not conditioned upon the availability of, or obtaining, third-party financing (any such Permitted Acquisition being a “Limited Conditionality Acquisition”), to the extent agreed by the Lenders providing such Incremental Increase, (1) the representations and warranties the accuracy of which are a condition to the availability of such Incremental Increase shall be limited to customary “SunGuard” or other applicable “certain funds” conditionality provisions and (2) the condition to availability of such Incremental Increase requiring that no Default or Event of Default shall have occurred and be continuing shall be limited to (I) at the time of the execution and delivery of the definitive agreement for such Limited Conditionality Acquisition no Event of Default shall have occurred and be continuing or shall occur as a result thereof and (II) no Event of Default under clauses (a) or (f) of Article VII shall exist immediately prior to or after giving effect to such Incremental Increase (which Event of Default under this clause (II), for the avoidance of doubt, cannot be waived without the written consent of the Required Lenders); and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.18; provided that in the case of any Incremental Increase the proceeds of which are to be used to finance a Limited Conditionality Acquisition, to the extent agreed by the Lenders providing such Incremental Increase, there shall be no condition to the availability of the Incremental Increase related to the financial covenants contained in Section 6.18 (other than, to the extent applicable, the incurrence test with respect thereto contained in the definition of Incremental Amount); and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Original Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments of any Class or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other LendersLenders of such Class, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of such Class of all the Lenders to equal its Revolving Credit Commitment Dollar Tranche Percentage or Multicurrency Tranche Percentage, as applicable, of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans of such Class as of the date of any increase in the Revolving Credit Commitments of such Class (with such reborrowing to consist of the Types of Revolving Credit LoansLoans of such Class, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan and BA Equivalent Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the Term Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. In connection with any increase of the Revolving Commitments or Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. For the avoidance of doubt, in no event shall this Section 2.20 be available to the Borrowers during the Covenant Relief Period.
Appears in 2 contracts
Sources: Credit Agreement (LKQ Corp), Credit Agreement (LKQ Corp)
Expansion Option. The Borrower may from time to time elect elect, not more than six (6) times during the term of this Agreement, to increase the Revolving Credit General Partnership Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000100,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, Commitment an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide extend new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G F hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H G hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders Lenders, and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit General Partnership Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit General Partnership Loans, and (ii) the Borrower Administrative Agent shall be deemed to have repaid and reborrowed reallocate all outstanding Revolving Credit General Partnership Loans as of the date of any increase in the Revolving Credit General Partnership Commitments (with such reborrowing any related borrowings to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments reallocation made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the reallocated amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification compensation by the Borrower pursuant to in accordance with the provisions of Section 2.11 2.16 if the deemed payment reallocation occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Inergy L P), Credit Agreement (Inergy Holdings, L.P.)
Expansion Option. The Borrower may from Landlord hereby grants to Tenant the right to expand the Improvements on the Land in accordance with the terms of this SECTION 18. Such expansion right is a continuing right that expires on the Expiration Date, and inures solely to the benefit of (A) Tenant, Tenant's corporate successors and assigns (including, without limitation, any person or entity that acquires Tenant), and (B) any assignee of this Lease (including, without limitation, Tenant's Affiliates) to whom Tenant assigns such right unless Landlord is entitled to and recaptures the Premises in accordance with the terms of SECTION 11.1 above and their corporate successors and assigns (with all such persons or entities being deemed included in the term "TENANT"). Tenant cannot assign this expansion option to any person or entity other than an assignee of this Lease. Tenant cannot exercise this expansion option (Y) if an Event of Default has occurred and is ongoing, or (Z) if neither Tenant nor its guarantor has a net worth (excluding goodwill) greater than or equal to $75 million at the time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 Tenant (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitmentsassignee, as the case may be; provided ) exercises such expansion option.
(a) In the event Tenant wishes to exercise this right, Tenant must notify Landlord of such fact, which notice must specify that Tenant wishes to go forward with the expansion pursuant to the specifications of EXHIBIT H to this Lease (the "2-STORY PLAN") or the specifications of EXHIBIT I to this Lease (the "3-STORY PLAN"). The building shell for the building that Tenant elects to have constructed is referred to in this Lease as the "EXPANSION BASE BUILDING" and the Tenant improvements to the Expansion Base Building are referred to as the "EXPANSION LEASEHOLD IMPROVEMENTS." The Expansion Base Building and the Expansion Leasehold Improvements are collectively referred to as the "EXPANSION BUILDING" and the work of constructing the Expansion Building is referred to as "LANDLORD'S EXPANSION WORK".
(b) On or before thirty (30) days after Tenant delivers such notice to Landlord, Landlord will cause its architect to prepare and deliver to Tenant preliminary plans and specifications for the Expansion Base Building (the "EXPANSION BASE BUILDING PLANS"), which plans must be based on an exterior appearance substantially similar to the Original Base Building. While these preliminary plans and specifications are not required to be permit-ready, they must contain a site plan, floor plan, one-quarter inch (0.25") scale core building plans, elevations of the Expansion Base Building and a riser diagram of the mechanical, electrical and plumbing systems. Within five (5) business days after Tenant receives such preliminary Expansion Base Building Plans, Tenant will either approve the same in writing or notify Landlord in writing of Tenant's objections to the preliminary Expansion Base Building Plans and how the preliminary Expansion Base Building Plans must be changed in order to make them acceptable to Tenant. Each business day following the fifth (5th) business day after the preliminary Expansion Base Building Plans are submitted to Tenant until Tenant either approves them or delivers a notice of objections to Landlord will be a day of Tenant Expansion Delay. Within five (5) business days after Landlord's receipt of Tenant's notice of objections, Landlord will cause its architect to prepare revised Expansion Base Building Plans according to such notice and submit the revised Expansion Base Building Plans to Tenant. In any review, Tenant cannot object to any aspect of the proposed Expansion Base Building Plans (i) each Augmenting Lenderif such objection would require material deviations from the terms of EXHIBIT H or EXHIBIT I attached to this Lease, shall be subject to as the approval of the Borrowercase may be, each Letter of Credit Issuer and the Administrative Agent and or (ii) (x) such objection was not included within any of the previous objections made by Tenant to the Expansion Base Building Plans unless the item objected to was not included in any of the previous versions of the Expansion Base Building Plans or such item was so included, but has been affected by a subsequent change to the Expansion Base Building Plans. However, it is understood and agreed that Tenant has the right to select the following items, even if such items are not consistent with the guidelines detailed in the case Base Building Specifications attached as EXHIBIT B or with the same items in the Original Building , as long as they are available to comply with the schedule for construction of an Increasing Lenderthe Expansion Building: exterior brick, glass, and metal frames; restroom finishes (including, without limitation, ceramic tile and toilet partitions); lobby finishes; elevator cab finishes; landscaping; and common area interior finishes, doors and hardware. Upon submittal to Tenant of the revised Expansion Base Building Plans, and upon submittal of any further revisions, the Borrower procedures described above will be repeated until Landlord and Tenant have reached agreement. Once they have reached agreement, Landlord must promptly prepare permit-ready Expansion Base Building Plans and submit them to Tenant for Tenant's approval. The only grounds upon which Tenant can object to such Increasing Lender execute an agreement substantially permit-ready Expansion Base Building Plans is that they materially differ from the final approved preliminary Expansion Base Building Plans. Tenant's failure to respond to Landlord's submission within five (5) business days after Landlord delivers such permit-ready Expansion Base Building Plans to Tenant constitutes Tenant's approval of such permit-ready Expansion Base Building Plans. The final permit-ready Expansion Base Building Plans, as approved by Landlord and Tenant, constitute the "APPROVED EXPANSION BASE BUILDING PLANS" under this Lease.
(c) On or before seventy-five (75) days after Landlord and Tenant have approved the Approved Expansion Base Building Plans, Tenant will cause its architect to prepare and deliver to Landlord preliminary plans and specifications for the Expansion Leasehold Improvements (the "EXPANSION LEASEHOLD IMPROVEMENTS PLANS"). While these preliminary plans and specifications are not required to be permit-ready, they must show sufficient detail concerning all aspects of the Expansion Leasehold Improvements so that making them permit-ready is only a matter of incorporating technical details. Each day following the expiration of such seventy-five (75)-day period until Tenant delivers the preliminary Expansion Leasehold Improvements Plans will be a day of Expansion Tenant Delay. Within five (5) business days after receipt of the preliminary Expansion Leasehold Improvements Plans, Landlord will either approve the same in writing or notify Tenant in writing of Landlord's objections to the preliminary Expansion Leasehold Improvements Plans and how the preliminary Expansion Leasehold Improvements Plans must be changed in order to make them acceptable to Landlord. Landlord can only object to the preliminary Expansion Leasehold Improvements Plans on the grounds that they would adversely affect the structural integrity of the Expansion Base Building or materially modify any portion of the Core Building Systems of the Expansion Base Building and cannot object in any subsequent review to any matter not raised in a preceding review, unless the item objected to was not included in any of the previous versions of the Expansion Leasehold Improvements Plans or such item was so included, but has been affected by a subsequent change to the Expansion Leasehold Improvements Plans. However, under all circumstances, Tenant has the right to select the following items as they apply to the Expansion Leasehold Improvements, but only as long as such items are available to comply with the schedule of construction of the Expansion Building: exterior brick, glass, and metal frames; restroom finishes (including, without limitation, ceramic tile and toilet partitions); lobby finishes; elevator cab finishes; landscaping; and common area interior finishes, doors and hardware. If Landlord fails to respond in the form manner set forth above within five (5) business days after the date Tenant delivers the preliminary Expansion Leasehold Improvements Plans to Landlord or objects to the preliminary Expansion Leasehold Improvements Plans on any grounds other than those set forth in the immediately-preceding sentence, then Landlord will be conclusively deemed to have approved the preliminary Expansion Leasehold Improvements Plans. Within five (5) business days after Tenant's receipt of Exhibit G heretoLandlord's notice of objections (if such objections meet the requirements set forth above), Tenant will cause its architect to prepare revised Expansion Leasehold Improvements Plans according to such notice and submit the revised Expansion Leasehold Improvements Plans to Landlord. Upon submittal to Landlord of the revised Expansion Leasehold Improvements Plans, and upon submittal of any further revisions, the procedures described above will be repeated until Landlord and Tenant have reached agreement. Once they have reached agreement, Tenant must promptly prepare permit-ready Expansion Leasehold Improvements Plans and submit them to Landlord for Landlord's approval. The only grounds upon which Landlord can object to such permit-ready Expansion Leasehold Improvements Plans is that they materially differ from the final approved Expansion Leasehold Improvements Plans. Landlord's failure to respond to Tenant's submissions within five (y5) business days after Tenant delivers such permit-ready Expansion Leasehold Improvements Plans to Landlord constitutes Landlord's approval of such permit-ready Expansion Leasehold Improvements Plans. The permit-ready Expansion Leasehold Improvements Plans, as finally approved, are referred to in this Lease as the "APPROVED EXPANSION LEASEHOLD IMPROVEMENTS PLANS."
(d) At such time as Landlord and Tenant have approved the Approved Expansion Leasehold Improvements Plans (and in any event within fifteen (15) days thereafter), Landlord will (i) obtain at least three bids for each of the major trades that will be involved in the construction of the Expansion Building, unless less than three qualified subcontractors exist for a given trade, in which case Landlord will obtain a bid from all qualified subcontractors of an Augmenting Lendersuch trade (with Landlord agreeing to solicit and consider bids from subcontractors selected by Tenant); (ii) using the lowest qualified bid (which, in order to be qualified, must fully comply with all bid requirements, including but not limited to any time requirements specified) from each of the bids so received, prepare a proposed budget for all items to be included in Expansion Costs ("TENANT'S EXPANSION COST PROPOSAL"); and (iii) submit copies of all bids, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting LendersTenant's Expansion Cost Proposal, and the Administrative Agent shall notify each Lender thereof. Notwithstanding Expansion Basic Rent that Tenant would be required to pay based on the foregoing, no increase costs set forth in the Revolving Credit Commitments (Tenant's Expansion Cost Proposal to Tenant for Tenant's review and approval. Tenant, at Tenant's option, may either approve Tenant's Expansion Cost Proposal in writing, or elect to eliminate or revise one or more items of Expansion Building shown on the Approved Expansion Base Building Plans or the Approved Expansion Leasehold Improvements Plans, or request additional bids so as to reduce the costs shown in the Revolving Credit Commitment of any Lender) shall become effective Tenant's Expansion Cost Proposal. Tenant may then approve in writing the reduced Tenant's Expansion Cost Proposal (based on revised Approved Expansion Base Building Plans or Approved Expansion Leasehold Improvements Plans prepared by Tenant's architect or revised bids, as the case may be, which will then be deemed the Approved Expansion Base Building Plans and the Approved Expansion Leasehold Improvements Plans for all purposes under this paragraph unlessLease). However, each day following the fifth (5th) business day after Tenant's receipt of Tenant's Expansion Cost Proposal until the day on which Landlord has received Tenant's written approval of Tenant's Expansion Cost Proposal will be a day of Expansion Tenant Delay. The Tenant's Expansion Cost Proposal, as finally approved, is referred to in this Lease as the "APPROVED EXPANSION COSTS."
(e) Tenant's Representative may request and authorize changes in Landlord's Expansion Work as long as such changes (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance are consistent with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority scope of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit LoansLandlord's Expansion Work, and (ii) do not affect the Borrower Expansion Base Building or any portion of the Core Building Systems relating to the Expansion Base Building. All other changes will be subject to Landlord's prior written approval, which approval Landlord cannot unreasonably withhold, delay, or condition. Within five (5) business days after Tenant requests a change in Landlord's Expansion Work and prior to commencing any change, Landlord will prepare and deliver to Tenant, for Tenant's approval, a change order ("EXPANSION CHANGE ORDER") identifying the total cost or savings of such change, which will include associated architectural, engineering and construction contractor's fees, and the total time that will be added to or subtracted from the construction schedule by such change. Once Landlord delivers an Expansion Change Order to Tenant for Tenant's approval, Tenant must either affirmatively approve or disapprove of the Expansion Change Order within three (3) business days following Tenant's receipt of the Expansion Change Order. In the event Tenant fails to respond within the three (3) business day period, then each day thereafter that Tenant fails to respond shall be deemed a Tenant Expansion Delay. Alternatively, Landlord may deliver to have repaid and reborrowed all outstanding Revolving Credit Loans as Tenant, within the same five (5) business day period, an estimate of the date time and costs to be expended in calculating the Expansion Change Order. In the event Tenant does not respond or fails to affirmatively authorize Landlord to proceed on the third (3rd) business day following Tenant's receipt of such estimate, then it shall be conclusively deemed that Tenant withdrew its request for any increase change in Landlord's Expansion Work. If Tenant authorizes Landlord to proceed with calculating the Revolving Credit Commitments cost of the Expansion Change Order, then Tenant shall be responsible for all reasonable costs associated therewith (and pay same to Landlord within 30 days following Landlord's written request) and any delay in connection with such reborrowing calculation shall be an Expansion Tenant Delay, whether or not Tenant ultimately approves the Expansion Change Order.
(f) Landlord must deliver the Expansion Building to consist Tenant, with Landlord's Expansion Work Substantially Completed, on or before two hundred ten (210) days after Landlord and Tenant approve the Approved Expansion Leasehold Improvements Plans (the "PROJECTED EXPANSION COMPLETION DATE"), as such date has been delayed due to any Tenant Expansion Delays and Permitted Expansion Force Majeure Delays only, it being understood and agreed that such date cannot be extended for any reason other than Tenant Expansion Delays and Permitted Expansion Force Majeure Delays. If Landlord is unable to deliver possession of the Types of Revolving Credit LoansExpansion Building, with related LIBOR Periods if applicable, specified in a notice delivered Landlord's Expansion Work Substantially Completed by the BorrowerProjected Expansion Completion Date, as it may be extended, (i) the Expansion Commencement Date (as that term is defined in accordance SECTION 18(j)(I) below) will be extended automatically by one day for each day of the period after the Projected Expansion Completion Date to the day on which Landlord tenders possession of the Expansion Building to Tenant with the requirements Landlord's Expansion Work Substantially Completed, less any portion of Section 2.9). The deemed payments made pursuant that period attributable to clause Tenant Expansion Delays; and (ii) Landlord will pay Tenant, as liquidated damages, an amount equal to $2,000.00 per day for each day after such Projected Expansion Completion Date (as it may be extended) until Landlord tenders possession of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid Expansion Building to Tenant with Landlord's Expansion Work Substantially Completed and, in respect if Landlord has tendered the Expansion Building to Tenant with Landlord's Expansion Work Substantially Complete, Landlord will pay to Tenant, as liquidated damages, $500.00 per day after the thirtieth (30th) day after Tenant delivers the Expansion Punch List to Landlord until Final Completion of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 Landlord's Expansion Work; and (iv) if the deemed payment occurs other than on the last day Landlord does not tender possession of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, Expansion Building to Tenant with the Landlord's Expansion Work Substantially Completed on or otherwise be deemed to be, a commitment on before two hundred seventy (270) days after Landlord and Tenant approve the part of any Lender to increase its Revolving Credit Commitment hereunder.Approved Expansion Leasehold Impro
Appears in 2 contracts
Sources: Build to Suit Net Lease (Alliance Data Systems Corp), Build to Suit Net Lease (Alliance Data Systems Corp)
Expansion Option. The Prior to the twelve (12) months immediately preceding the Scheduled Maturity Date, Sponsor may request an increase to the Sponsor Borrower Loan which request shall be approved by Lender in its sole discretion. Sponsor may from time request any increase to time elect the Sponsor Borrower Loan as described below, up to increase the Revolving Credit Commitments in minimum increments a maximum of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; 300,000,000 provided that (i) each Augmenting Lenderno Potential Default, Event of Default, Affiliate Borrower Default or Potential Affiliate Borrower Default shall have occurred and be subject to the approval continuing under any of the Borrower, each Letter of Credit Issuer Loan Documents or Affiliate Borrower Loan Documents and shall have occurred and then be continuing at the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness time of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the representations and warranties of Section 7 are true and correct at the time of such increase. Sponsor may exercise such request by delivering to Lender 60 days prior written Notice of its request to increase the Sponsor Borrower Loan including the amount of such requested increase, which Notice shall be accompanied by the Expansion Fee. If the request to increase the Sponsor Borrower is approved by Lender in its sole discretion, then, (a) Sponsor shall pay all reasonable costs and expenses that Lender and Servicer may incur in connection with such increase including, but not limited to, Attorneys’ Fees and Costs, and (b) Sponsor and Borrower shall be deemed execute and where appropriate acknowledge (1) amendments to have repaid the Loan Documents, in form and reborrowed all outstanding Revolving Credit Loans substance acceptable to Lender in its sole discretion, as of Lender deems necessary in its sole discretion to evidence the date of any increase in the Revolving Credit Commitments Sponsor Borrower Loan, and (with such reborrowing 2) any other amendments or agreements deemed necessary by Lender in its sole discretion, including, but not limited to, amendments to consist the title insurance policy(ies) increasing the amount of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified coverage provided thereunder. All amendments referred to in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (iib)(1) of the immediately preceding sentence shall be accompanied prepared by payment Lender’s counsel and delivered to Sponsor and Borrower within a reasonable period of time following Lender’s approval of the increase to the Sponsor Borrower Loan. Upon Lender’s approval, in its sole discretion, of the increase to the Sponsor Borrower Loan, and Sponsor’s and Borrower’s compliance with all accrued interest on of the provisions set forth herein, the Sponsor Borrower Loan shall be increased to the amount prepaid and, requested by Sponsor or such lesser amount as approved by Lender in respect of each LIBOR Loan, its sole discretion (the “Expansion Amount”). The minimum amount which can be requested herein by Sponsor pursuant to this Section shall be subject to indemnification by the Borrower pursuant $25,000,000 (“Minimum Requested Expansion Amount”). Subject to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in 2.4.1 and this Section 2.15 2.4.3, in no event shall constitutethe number of requested increases by Sponsor exceed 2 within any 12 month period, or otherwise and if a requested increase to the Sponsor Borrower Loan is not approved by Lender, then the Sponsor shall not be deemed entitled to be, a commitment on request any further increases to the part of any Lender to increase its Revolving Credit Commitment hereunderSponsor Borrower Loan.
Appears in 2 contracts
Sources: Credit Agreement (Preferred Apartment Communities Inc), Credit Agreement (Preferred Apartment Communities Inc)
Expansion Option. The Borrower Solely to the extent that the Covenant Suspension Period is not in effect, theThe Company may from time to time after the Amendment No. 45 Effective Date elect to increase the Revolving Credit total Multicurrency Tranche Commitments and/or the total Dollar Tranche Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed the sum of (A) $50,000,000200,000,000 plus (B) an unlimited additional amount such that, in the case of this clause (B) only, after giving effect (including giving effect on a Pro Forma Basis reasonably acceptable to the Administrative Agent) to any such increase in the Multicurrency Tranche Commitments, increase in the Dollar Tranche Commitments and/or tranche of Incremental Term Loans (assuming that any such incremental Multicurrency Tranche Commitments, incremental Dollar Tranche Commitments and such Incremental Term Loans are drawn in full), the Senior Secured Leverage Ratio is equal to or less than the Applicable Senior Secured Leverage Ratio Level (other than to the extent such increased Multicurrency Tranche Commitments, such increased Dollar Tranche Commitments and/or such Incremental Term Loans are incurred pursuant to this clause (B) concurrently with the incurrence of increased Multicurrency Tranche Commitments, increased Dollar Tranche Commitments and/or Incremental Term Loans in reliance on clause (A) above, in which case the Senior Secured Leverage Ratio shall be permitted to exceed the Applicable Senior Secured Leverage Ratio Level to the extent of such increased Multicurrency Tranche Commitments, increased Dollar Tranche Commitments and/or such Incremental Term Loans incurred in reliance on such clause (A)); provided that, for the avoidance of doubt, increased Multicurrency Tranche Commitments, increased Dollar Tranche Commitments and/or Incremental Term Loans may be incurred pursuant to this clause (B) prior to utilization of the amount set forth in clause (A) above. As used herein, “Applicable Senior Secured Leverage Ratio Level” means a ratio equal to (x) the numerator of the maximum Senior Secured Leverage Ratio permitted under Section 6.12(c) at such time minus 0.25 to (y) 1.00. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other institutional investors or entities (each such new bank, financial institution or other investor or entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 and 6.12, (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Restatement Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase and (iii) such increase in the Revolving Credit CommitmentsCommitments or valid perfected Liens on all the Collateral in favor of the Administrative Agent, on behalf of itself and the other Secured Parties, and such Liens constitute perfected and continuing Liens on the Collateral, securing the Secured Obligations, enforceable against the applicable Loan Party and all third parties as provided by applicable law, and having priority over all other Liens on the Collateral except in the case of (ia) each relevant Increasing Lender and Augmenting Lender shall make available Permitted Encumbrances, to the extent any such Permitted Encumbrances would have priority over the Liens in favor of the Administrative Agent such amounts in immediately available funds as pursuant to any applicable law and (b) Liens perfected only by possession (including possession of any certificate of title) to the extent the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use has not obtained or does not maintain possession of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderCollateral.
Appears in 2 contracts
Sources: Credit Agreement (CIMPRESS PLC), Credit Agreement (CIMPRESS PLC)
Expansion Option. (a) Tenant shall have the additional option ("First Expansion Option"), by providing written notice thereof to Landlord (the "First Expansion Election Notice") at any time between April 1, 1996 and October 1, 1996, to include under this Lease an additional 4,000 to 5,000 square feet of Net Rentable Area on the fifteenth (15th) Floor of the Building. The Borrower amount of additional space to be included under this Lease pursuant to the First Expansion Option shall be identified by Tenant in the First Expansion Election Notice. The actual space to be included under this Lease pursuant to the First Expansion Option shall be designated by Landlord, provided, however, it shall be internally contiguous and contiguous to the then existing Leased Premises and shall have a reasonable configuration (the "First Expansion Space"). Landlord and Tenant shall then enter into an amendment to this Lease to cover such First Expansion Space on the same terms and provisions then in effect under this Lease, except as otherwise provided hereunder and except that (i) the annual Base Rental rate for the First Expansion Space shall be adjusted to reflect the Prevailing Rental Rate as of the date such First Expansion Space will be made available to Tenant, (ii) Landlord shall not be required to provide (but may from do so at its option and with Tenant's consent) any improvement allowance, abatement of Rent, or other incentives, inducements or allowances, (iii) Tenant shall be entitled to one additional (1) unreserved parking permit per 680 square feet of Net Rentable Area leased pursuant to such First Expansion Option, at the prevailing market rate therefor as of the addition of such First Expansion Space to the Leased Premises, and thereafter adjust in accordance with any such changes to such market charges, (iv) Tenant shall not have the right to assign its expansion rights to any sublessee of the Leased Premises, nor may any such sublessee exercise such expansion rights, and (v) the First Expansion Space will be provided in its then existing condition (on an "as is" basis; provided, however, Landlord shall remove and dispose of any Existing Asbestos located in the First Expansion Space, other than the Existing Asbestos located on the perimeter columns of the First Expansion Space). The First Expansion Space shall be made available to Tenant between October 1, 1996 and February 1, 1997. Tenant's obligation to commence paying Rent on such First Expansion Space shall commence on the earliest to occur of (1) Tenant's occupancy of such First Expansion Space for the purpose of conducting business therefrom, or (2) sixty (60) days following the delivery of such First Expansion Space by Landlord to Tenant. Landlord shall, at Landlord's cost and expense, be required to make any alterations to the First Expansion Space and the Building which are required by law in order to provide such space to Tenant (i.e. corridors, access, etc.)
(b) Tenant shall have the additional option ("Second Expansion Option"), by providing written notice thereof to Landlord (the "Second Expansion Election Notice")at any time between March 1, 1997 and September 1, 1997, to time elect include under this Lease an additional 4,000 to increase 5,000 square feet of Net Rentable Area on the Revolving Credit Commitments fifteenth (15th) Floor of the Building. The amount of additional space to be included under this Lease pursuant to the Second Expansion Option shall be identified by Tenant in minimum increments the Second Expansion Election Notice. The actual space to be included under this Lease pursuant to the Second Expansion Option shall be designated by Landlord, provided, however, it shall be internally contiguous and contiguous to the then existing Leased Premises and shall have a reasonable configuration (the "Second Expansion Space"). Landlord and Tenant shall then enter into an amendment to this Lease to cover such Second Expansion Space on the same terms and provisions then in effect under this Lease, except as otherwise provided hereunder and except that (i) the annual Base Rental rate for the Second Expansion Space shall be adjusted to reflect the Prevailing Rental Rate, as of $25,000,000 the date such Second Expansion Space will be made available to Tenant (ii) Landlord shall not be required to provide (but may do so at its option and with Tenant's consent) any improvement allowance, abatement of Rent, or other incentives, inducements or allowances, (iii) Tenant shall be entitled to one additional (1) unreserved parking permit per 680 square feet of Net Rentable Area leased pursuant to such lesser Second Expansion Option at the prevailing market rate therefor as of the addition of such Second Expansion Space to the Leased Premises, and thereafter adjust in accordance with any such changes to such market charges, (iv) Tenant shall not have the right to assign its expansion rights to any sublessee of the Leased Premises, nor may any such sublessee exercise such expansion rights, and (v) the Second Expansion Space will be provided in its then existing condition (on an "as is" basis; provided, however, Landlord shall remove and dispose of any Existing Asbestos located in the Second Expansion Space, other than the Existing Asbestos located on the perimeter columns of the Second Expansion Space). The Second Expansion Space shall be made available to Tenant between September 1, 1997 and January 1, 1998. Tenant's obligation to commence paying Rent on such Second Expansion Space shall commence on the earliest to occur of (1) Tenant's occupancy of such Second Expansion Space for the purpose of conducting business therefrom, or (2) sixty (60) days following the delivery of such Second Expansion Space by Landlord to Tenant. Landlord shall, at Landlord's cost and expense, be required to make any alterations to the Second Expansion Space and the Building which are required by law in order to provide such space to Tenant (i.e corridors, access, etc.)
(c) In the event Tenant exercises its right under either the First Expansion Option or the Second Expansion Option, but objects to Landlord's determination of the Prevailing Rental Rate, then the Prevailing Rental Rate shall be determined in accordance with the procedure set forth in Section 12.02(l) of this Lease.
(d) If Tenant exercises the Preferential Right under Section 11.01 and such exercise results in a reduction of the number of square feet of Net Rentable Area available for Tenant's First Expansion Option and Second Expansion Option then the amount of expansion space contained in the First Expansion Option and the Second Expansion Option shall be reduced to the amount of Net Rentable Area available on the fifteenth (15th) floor at the respective times such expansion options may be exercised by Tenant. In the event Tenant exercises its right under either the First Expansion Option or the Second Expansion Option and as a result of Tenant exercising its rights under the Administrative Agent may agree) so long as, after giving effect theretoPreferential Right (as defined in Section 11.01), the aggregate amount remaining space on the fifteenth (15th) Floor of such increases does the Building that is not exceed $50,000,000. The Borrower may arrange for any such increase to be provided then being leased by one Tenant is less than 4,000 square feet of Net Rentable Area, then the First Expansion Option or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitmentsthe Second Expansion Option, as the case may be; provided that (i) each Augmenting Lender, shall be subject revised to the approval include all of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective Net Rentable Area on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments fifteenth (or in the Revolving Credit Commitment of any Lender15th) shall become effective under this paragraph unless, (i) on the proposed date Floor of the effectiveness of such increase, Building which is not then being leased by Tenant.
(Ae) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained Notwithstanding anything in this Section 2.15 10.01 to the contrary, Tenant's First Expansion Option and Second Expansion Option shall constituteterminate if this Lease or Tenant's right to possession of the Leased Premises is terminated, or otherwise be deemed if Tenant fails to betimely exercise the First Expansion Option or the Second Expansion Option; provided, however, Tenant's failure to timely exercise the First Expansion Option shall not result in a commitment on termination of the part of any Lender to increase its Revolving Credit Commitment hereunderSecond Expansion Option."
Appears in 2 contracts
Sources: Lease Agreement (Howell Corp /De/), Lease Agreement (Howell Corp /De/)
Expansion Option. The Borrower may from time to time elect elect, not more than six (6) times during the term of this Agreement, to increase the Revolving Credit General Partnership Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000250,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, Commitment an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide extend new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G F hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H G hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders Lenders, and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other LendersLenders of such Class, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit General Partnership Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit General Partnership Loans, and (ii) the Borrower Administrative Agent shall be deemed to have repaid and reborrowed reallocate all outstanding Revolving Credit General Partnership Loans as of the date of any increase in the Revolving Credit General Partnership Commitments (with such reborrowing any related borrowings to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments reallocation made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the reallocated amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification compensation by the Borrower pursuant to in accordance with the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.of
Appears in 2 contracts
Sources: Credit Agreement (Inergy Midstream, L.P.), Credit Agreement (Inergy Midstream, L.P.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000100,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent (such approval of the Administrative Agent not to be unreasonably withheld or delayed) and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G B hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H C hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Any Lender that does not respond to any such requested increase or tranche of Incremental Term Loan shall be deemed to have not consented thereto. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.05 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender (which election shall be in such Lender’s absolute and sole discretion) to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 2 contracts
Sources: Credit Agreement, Credit Agreement (Maxim Integrated Products Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans or increase an existing tranche of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 50,000,000 so long as, after giving effect thereto, the aggregate amount of all such increases and all such Incremental Term Loans does not exceed $50,000,000500,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and each Issuing Bank and Swingline Lender to the extent the consent of the Issuing Bank or the Swingline Lender would be required to effect an assignment under Section 9.04(b), and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G D hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H E hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.22. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.22 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered pursuant to Section 4.01(c) on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Term Benchmark Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the initial Term Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.22. Nothing contained in this Section 2.15 2.22 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. In connection with any increase of the Revolving Commitments or Incremental Term Loans pursuant to this Section 2.22, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 2 contracts
Sources: Credit Agreement (Paycom Software, Inc.), Credit Agreement (Paycom Software, Inc.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000Section 41.1. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided Provided that (i) each Augmenting Lender, this Lease shall be subject to the approval of the Borrower, each Letter of Credit Issuer in full force and the Administrative Agent and effect; (ii) there shall not then be existing an Event of Default under this Lease; (xiii) Tenant and its affiliates shall be in physical occupancy of at least 75% of the rentable area of the Premises; and (iv) Viacom International Inc. (or its successor) has not previously exercised its expansion right on the Expansion Space, Tenant shall have the one-time option (the “Expansion Option”) to lease the Expansion Space in accordance with the provisions of this Article 41. The leasing of the Expansion Space shall be upon all of the terms and conditions contained in this Lease, except as provided herein.
Section 41.2. Landlord represents that the existing lease for the Expansion Space expires on January 31, 2015 and that Landlord shall not extend the term of such lease without Tenant’s consent so long as the Expansion Option is still in effect. Tenant may exercise the Expansion Option by notice to Landlord (the “Expansion Notice”) given on or before December 31, 2013 (time being of the essence with respect to Tenant’s obligation to exercise the Expansion Option by such date). Tenant’s Expansion Notice shall be accompanied by Tenant’s determination of the Fair Market Value of the Expansion Space (“Tenant’s Expansion Determination”), which shall constitute the minimum that Tenant can claim is the Fair Rental Value of the Expansion Space in any arbitration thereof. If Tenant shall timely exercise the Expansion Option in the case manner set forth above, then on the date (the “Expansion Space Commencement Date”) on which Landlord delivers possession of an Increasing Lenderthe Expansion Space to Tenant, vacant, free of occupants and free and clear of any and all rights of any other tenants or occupants of the Building, the Borrower Expansion Space automatically shall be deemed to be and such Increasing Lender execute an agreement substantially shall be added to and form part of the Premises under this Lease except (A) the Fixed Rent for the Expansion Space shall be 100% of the Fair Market Value of the Expansion Space (with no abatement of Fixed Rent), (B) Tenant’s Share for the Expansion Space shall be a fraction, expressed as a percentage, the numerator of which shall be the rentable square footage of the Expansion Space and the denominator of which shall be the rentable square footage of the Building then used by Landlord generally in new leases, (C) Tenant shall accept the form of Exhibit G heretoExpansion Space in “as is” but broom clean condition, and (yD) Landlord shall not be obligated to pay a Tenant Improvement Allowance with respect to the Expansion Space, provided all of the same is taken into account in determining Fair Market Value.
Section 41.3. Within 30 days after receipt of the Expansion Notice and Tenant’s Expansion Determination, Landlord shall deliver to Tenant Landlord’s determination of the Fair Rental Value for the Expansion Space (“Landlord’s Expansion Determination”), if it disagrees with Tenant, which shall constitute the maximum that Landlord can claim is the Fair Rental Value for the Expansion Space in any arbitration thereof. If the parties fail to agree upon the Fair Market Value of the Expansion Space within thirty (30) days after the date of Landlord’s Expansion Determination, then the dispute shall be resolved by arbitration as set forth in Section 40.3, except Tenant’s Expansion Determination shall be substituted for Tenant’s Minimum Determination and Landlord’s Expansion Determination shall be substituted for Landlord’s Maximum Determination. If the dispute shall not have been resolved on or before the Expansion Space Commencement Date, then pending such resolution, Tenant shall pay, as Fixed Rent for the Expansion Space, an amount equal to the average of Landlord’s Expansion Determination and Tenant’s Expansion Determination. Within 30 days after the final determination of Fair Market Value, Landlord and Tenant shall reconcile any overpayment or underpayment.
Section 41.4. If Tenant fails timely to give the Expansion Notice under this Article 41, then (i) Landlord may enter into one or more leases of the Expansion Space (or any portion thereof) with third parties on such terms and conditions as Landlord shall determine, (ii) the Expansion Option shall be null and void and of no further force and effect and Landlord shall have no further obligation to lease the Expansion Space (or any portion thereof) to Tenant and (iii) Tenant shall, as soon as reasonably practicable after demand by Landlord, execute an instrument reasonably satisfactory to Landlord and Tenant confirming Tenant’s waiver of, and extinguishing, the Expansion Option.
Section 41.5. Promptly after the occurrence of the Expansion Space Commencement Date, Landlord and Tenant shall confirm the occurrence thereof and the inclusion of the Expansion Space in the case Premises by executing an instrument reasonably satisfactory to Landlord and Tenant; provided that failure by Landlord or Tenant to execute such instrument shall not affect the inclusion of an Augmenting Lenderthe Expansion Space in the Premises in accordance with this Article 41.
Section 41.6. If Landlord is unable to deliver possession of the Expansion Space to Tenant for any reason on or before the Expansion Space Commencement Date, the Borrower and effective date such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) Expansion Space shall be required for any increase in Revolving Credit Commitments pursuant deemed to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 be part of the Premises shall become effective on be the date agreed by on which Landlord is able to so deliver possession and Landlord shall have no liability to Tenant therefor and this Lease shall not in any way be impaired. If an existing tenant of the BorrowerExpansion Space holds over, Landlord shall commence and prosecute to conclusion an eviction action against such holdover tenant, to obtain possession of such Expansion Space. This Section 41.6 constitutes “an express provision to the Administrative Agent contrary” within the meaning of Section 223-a of the New York Real Property Law and the relevant Increasing Lenders any other law of like import now or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereofhereafter in effect. Notwithstanding the foregoing, no increase if Landlord is unable to deliver possession of the Expansion Space to Tenant within 180 days after the anticipated commencement date for such Expansion Space specified by Landlord after Tenant’s request therefor, Tenant, upon notice to Landlord given within fifteen (15) days after the expiration of such 180 day period (unless the commencement date for the Expansion Space shall have occurred prior to the giving of such notice), may withdraw its Expansion Notice and the Expansion Space shall not become part of the Premises.
Section 41.7. Notwithstanding anything in this Article 41 to the Revolving Credit Commitments contrary, if Landlord anticipates that the Expansion Space shall become vacant and free of the option of Viacom International Inc. (or in its successors) prior to the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unlessscheduled Expansion Space Commencement Date, (i) on then Landlord may accelerate the proposed date Expansion Space Commencement Date by delivering a notice to Tenant advising it of the effectiveness accelerated Expansion Space Commencement Date as well as specifying Landlord’s Expansion Determination for such Expansion Space. In such event, Tenant, if it wishes to exercise such option, shall do so by delivering to Landlord the Expansion Notice within 30 days of Landlord’s notice (time being of the essence with respect to Tenant’s obligation to give Tenant’s Expansion Notice by such increasedate), and otherwise in accordance with this Article 41.
Section 41.8. As a condition of Tenant’s exercise of the Expansion Option, the Term of this Lease shall be extended for a two year period so that the Fixed Expiration Date shall be October 31, 2020, upon all of the terms and conditions of this Lease. The Fixed Rent for such additional two year period (Aas such Fixed Rent shall be increased pursuant to Section 3.5 of this Lease) the conditions is set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.Schedule C.
Appears in 2 contracts
Sources: Lease Agreement (Everyday Health, Inc.), Lease Agreement (Everyday Health, Inc.)
Expansion Option. (a) Tenant shall have the additional option ("First Expansion Option"), by providing written notice thereof to Landlord (the "First Expansion Election Notice") at any time between April 1. 1996 and October 1, 1996, to include under this Lease an additional 4,000 to 5,000 square feet of Net Rentable Area on the fifteenth (15th) Floor of the Building. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000additional space to be included under this Lease pursuant to the First Expansion Option shall be identified by Tenant in the First Expansion Election Notice. The Borrower may arrange for any such increase actual space to be included under this Lease pursuant to the First Expansion Option shall be designated by Landlord, provided, however, it shall be internally contiguous and contiguous to the then existing Leased Premises and shall have a reasonable configuration (the "First Expansion Space"). Landlord and Tenant shall then enter into an amendment to this Lease to cover such First Expansion Space on the same terms and provisions then in effect under this Lease, except as otherwise provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided hereunder and except that (i) each Augmenting Lender, the annual Base Rental rate for the First Expansion Space shall be subject adjusted to reflect the approval lesser of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer Prevailing Rental Rate as of the Borrower and date such First Expansion Space will be made available to Tenant or (B) the Borrower shall be annual Base Rental Rate set forth in compliance with the covenant contained in Section 9.3 and this Lease, (ii) Landlord shall not be required to provide (but may do so at its option and with Tenant's consent) any improvement allowance, abatement of Rent, or other incentives, inducements or allowances, (iii) Tenant shall be entitled to one additional (1) unreserved parking permit per 680 square feet of Net Rentable Area leased pursuant to such First Expansion Option, at the Administrative Agent prevailing market rate therefor as of the addition of such First Expansion Space to the Leased Premises, and thereafter adjust in accordance with any such changes to such market charges, (iv) Tenant shall not have the right to assign its expansion rights to any sublessee of the Leased Premises, nor may any such sublessee exercise such expansion rights, and (v) the First Expansion Space will be provided in its then existing condition (on an "as is" basis; provided, however, Landlord shall remove and dispose of any Existing Asbestos located in the First Expansion Space, other than the Existing Asbestos located on the perimeter columns of the First Expansion Space). The First Expansion Space shall be made available to Tenant between October 1, 1996 and February 1, 1997. Tenant's obligation to commence paying Rent on such First Expansion Space shall commence on the earliest to occur of (1) Tenant's occupancy of such First Expansion Space for the purpose of conducting business therefrom, or (2) sixty (60) days following the delivery of such First Expansion Space by Landlord to Tenant. Landlord shall, at Landlord's cost and expense, be required to make any alterations to the First Expansion Space and the Building which are required by law in order to provide such space to Tenant (i.e. corridors, access, etc.)
(b) Tenant shall have received documents the additional option ("Second Expansion Option"), by providing written notice thereof to Landlord (the "Second Expansion Election Notice")at any time between March 1, 1997 and opinions consistent with those delivered September 1, 1997, to include under this Lease an additional 4,000 to 5,000 square feet of Net Rentable Area on the effective date as fifteenth (15th) Floor of the Building. The amount of additional space to be included under this Lease pursuant to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase Second Expansion Option shall be identified by Tenant in the Revolving Credit CommitmentsSecond Expansion Election Notice. The actual space to be included under this Lease pursuant to the Second Expansion Option shall be designated by Landlord, provided, however, it shall be internally contiguous and contiguous to the then existing Leased Premises and shall have a reasonable configuration (the "Second Expansion Space"). Landlord and Tenant shall then enter into an amendment to this Lease to cover such Second Expansion Space on the same terms and provisions then in effect under this Lease, except as otherwise provided hereunder and except that (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, annual Base Rental rate for the benefit Second Expansion Space shall be adjusted to reflect the lesser of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (iiA) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans Prevailing Rental Rate, as of the date such Second Expansion Space will be made available to Tenant or (B) the annual Base Rental Rate set forth in this Lease, (ii) Landlord shall not be required to provide (but may do so at its option and with Tenant's consent) any improvement allowance, abatement of Rent, or other incentives, inducements or allowances, (ii) Tenant shall be entitled to one additional (1) unreserved parking permit per 680 square feet of Net Rentable Area leased pursuant to such Second Expansion Option at the prevailing market rate therefor as of the addition of such Second Expansion Space to the Leased Premises, and thereafter adjust in accordance with any such changes to such market charges, (iii) Tenant shall not have the right to assign its expansion rights to any sublessee of the Leased Premises, nor may any such sublessee exercise such expansion rights, and (iv) the Second Expansion Space will be provided in its then existing condition (on an "as is" basis; provided, however, Landlord shall remove and dispose of any increase Existing Asbestos located in the Revolving Credit Commitments (with such reborrowing to consist Second Expansion Space, other than the Existing Asbestos located on the perimeter columns of the Types Second Expansion Space). The Second Expansion Space shall be made available to Tenant between September 1, 1997 and January 1, 1998. Tenant's obligation to commence paying Rent on such Second Expansion Space shall commence on the earliest to occur of Revolving Credit Loans(1) Tenant's occupancy of such Second Expansion Space for the purpose of conducting business therefrom, with related LIBOR Periods if applicableor (2) sixty (60) days following the delivery of such Second Expansion Space by Landlord to Tenant. Landlord shall, specified at Landlord's cost and expense, be required to make any alterations to the Second Expansion Space and the Building which are required by law in a notice delivered by order to provide such space to Tenant (i.e corridors, access, etc.)
(c) In the Borrowerevent Tenant exercises its right under either the First Expansion Option or the Second Expansion Option, but objects to Landlord's determination of the Prevailing Rental Rate, then the Prevailing Rental Rate shall be determined in accordance with the requirements of procedure set forth in Section 2.9). The deemed payments made pursuant to clause (ii12.02(l) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained this Lease.
(d) Notwithstanding anything in this Section 2.15 10.01 to the contrary, Tenant's First Expansion Option and Second Expansion Option shall constituteterminate if this Lease or Tenant's right to possession of the Leased Premises is terminated, or otherwise be deemed if Tenant fails to betimely exercise the First Expansion Option or the Second Expansion Option; provided, however, Tenant's failure to timely exercise the First Expansion Option shall not result in a commitment on termination of the part of any Lender to increase its Revolving Credit Commitment hereunderSecond Expansion Option."
Appears in 2 contracts
Sources: Lease Agreement (Howell Corp /De/), Lease Agreement (Howell Corp /De/)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 10,000,000 (or such lesser amount as the Administrative Agent may agreeand in integral multiples of $5,000,000 in excess thereof) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000250,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide new Revolving Credit extend Commitments, as the case may be; provided that (i) each Augmenting Lender, Lender shall be subject to the approval of the BorrowerAdministrative Agent, each Letter to the extent the approval of Credit Issuer and the Administrative Agent would be required to effect an assignment to such Augmenting Lender under Section 9.04(b), (ii) no Ineligible Institution may be an Augmenting Lender and (iiiii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoB hereto (an “Increasing Lender Supplement”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoC hereto (an “Augmenting Lender Supplement”). No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 there shall be satisfied or waived by the Required Lenders no Event of Default that has occurred and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 is continuing and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderhereunder at any time.
Appears in 2 contracts
Sources: Credit Agreement (Eagle Materials Inc), Credit Agreement (Eagle Materials Inc)
Expansion Option. The Borrower may from time (a) If, at anytime during the Term, any space on the fourth floor of the Building contiguous to time elect to increase the Revolving Credit Commitments in minimum increments Premises which is leased as of $25,000,000 the date of this Lease becomes available for lease (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderExpansion Space”), or by one or more new banks, financial institutions or other entities Landlord agrees to deliver to Tenant a notice setting forth the terms upon which Landlord would lease the Expansion Space to a third party tenant (each the “Offer Notice”) and an offer to Tenant to lease such new bank, financial institution or other entity, an Expansion Space on such terms (the “Augmenting LenderExpansion Space Option”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or . The Offer Notice shall provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lenderthe rent for the Expansion Space, which if the Offer Notice is given prior to the second (2nd) anniversary of this Lease, shall be subject to calculated on the approval of same Basic Rent and Additional Rent terms as provided in this Lease, or, if given after the Borrowersecond (2nd) anniversary, each Letter of Credit Issuer shall be the Fair Market Rental Value as determined by Landlord (but in no event less than the Basic Rent (on a per rentable square foot basis) and Additional Rent then currently paid by Tenant for the Administrative Agent and (iiPremises) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans“Expansion Space Rent”), and (ii) that the Borrower term of the lease for the Expansion Space shall expire contemporaneously with the expiration of the lease term provided herein (as same may be extended as hereinafter provided). The obligation of Landlord to deliver an Offer Notice pursuant to this Section 32.1 is subject to the rights of any other tenant in the Building that has a lease as of the date hereof to such Expansion Space or to any other tenant then occupying the Expansion Space.
(b) If Tenant wishes to exercise the Expansion Space Option, Tenant shall provide written notice to Landlord of its exercise of such right within ten (10) days after receipt of the Offer Notice. Thereafter, Tenant shall enter into an amendment to this Lease reasonably acceptable to both parties (the “Lease Amendment”) within thirty (30) days after receipt of the Offer Notice. If Tenant fails to timely enter into the Lease Amendment, Tenant shall be deemed to have repaid waived its Expansion Space Option.
(c) Landlord shall only be obligated to deliver to Tenant an Offer Notice for any Expansion Space once for any particular space on the fourth (4th) floor contiguous to the Premises.
(d) The delivery of an Offer Notice shall be null and reborrowed all outstanding Revolving Credit Loans as void, and Tenant shall have no rights under this Section 32 if at the time of such delivery: (i) Tenant shall not be in possession of seventy-five percent (75%) of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit LoansPremises, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause or (ii) Tenant shall be in default, beyond applicable notice and cure periods, of any of its obligations under the term of this Lease.
(e) If at the time Tenant exercises its Expansion Space Option, the term of this Lease has less than three (3) years remaining on its lease term, Tenant shall be required to exercise the Extension Option set forth in Section 31 hereof simultaneously with the exercise of the immediately preceding sentence Expansion Option.
(f) Landlord shall only be obligated to deliver to Tenant an Offer Notice for any Expansion Space once in any twelve (12) consecutive month period, notwithstanding the fact that various blocks of Expansion Space may become available for lease at different times throughout such year.
(g) Tenant shall be accompanied by payment of all accrued interest on the amount prepaid andentitled to a tenant improvement allowance, to be distributed in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to a manner consistent with the provisions of Section 2.11 if Schedule D, in an amount equal to the deemed payment occurs other than on product of (i) $32.50 times, (ii) the last day rentable square feet of the related LIBOR Periods. Nothing contained Expansion Space, times (iii) a fraction, the numerator of which is the number of calendar months remaining in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part Term and the denominator of any Lender to increase its Revolving Credit Commitment hereunderwhich is the total number of calendar months in the Term.
Appears in 2 contracts
Sources: Sublease (Roka BioScience, Inc.), Sublease (Roka BioScience, Inc.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject Subject to the approval Conditions (hereinafter defined), Subtenant may sublease all (but not less than all) of the BorrowerExpansion Space (defined below). If Subtenant desires to sublease the Expansion Space, each Letter of Credit Issuer then Subtenant must send written notice to Sublandlord and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date all of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall Conditions must be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of such notice. As used herein, the “Conditions” are as follows: (i) Sublandlord has not subleased, licensed or otherwise granted any increase in other entity the Revolving Credit Commitments (with such reborrowing right to consist of occupy or use the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause Second Floor Space; (ii) no default by Subtenant exists; (iii) the Prime Lease is still in effect with respect to the Expansion Space; and (iv) Sublandlord has not received an Offer (defined below) or sent a Termination Notice (defined below). As used herein, the “Expansion Space” means the portion of the immediately preceding sentence Second Floor Space that is not included within the Sublease Space, which portion contains 9,097 rentable square feet of space.
(ii) If Subtenant effectively exercises its option for the Expansion Space, then (a) possession of the Expansion Space shall be accompanied delivered to Tenant in an “AS-IS” condition, and (b) Subtenant and Sublandlord shall execute an amendment to this Sublease documenting that the Expansion Space is part of the Sublease Space and that the size of the Sublease Space shall be increased by payment of all accrued interest the rentable square feet in the Expansion Space. The Expansion Space shall be subleased on the amount prepaid andsame terms and conditions as set forth in this Sublease, including that the Basic Rent for the Expansion Space shall be at the same Monthly Rate per square foot of the Sublease Space as then applicable to the Sublease Space. Subtenant shall have no further right to expand the Sublease Space.
(iii) If Subtenant is unable to exercise its right hereunder (including without limitation because the Conditions are not satisfied), then such right shall lapse, and Sublandlord may lease all or a portion of the Expansion Space to third parties on such terms as Sublandlord may elect. In no event shall Sublandlord be obligated to pay a commission with respect to the Expansion Space leased by Subtenant, and Subtenant shall indemnify Sublandlord against all costs, expenses, attorneys’ fees, and other liability for commissions or other compensation claimed by any broker or agent claiming the same by, through, or under Subtenant. Subtenant’s rights under this section shall terminate if (A) this Sublease or Subtenant’s right to possession of the Sublease Space is terminated, (B) Subtenant assigns any of its interest in this Sublease or sublets any portion of the Sublease Space, or (C) Sublandlord determines, in respect its sole but reasonable discretion, that Subtenant’s financial condition or creditworthiness has materially deteriorated since the date of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constituteSublease, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder(D) Sublandlord receives an Offer.
Appears in 2 contracts
Sources: Sublease Agreement, Sublease Agreement (Verrica Pharmaceuticals Inc.)
Expansion Option. (a) The Borrower Borrowers may from time to time (but not more than two times after the Effective Date) elect to increase the Revolving Credit Commitments Floor Plan Commitments, in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,00010,000,000. The Borrower Borrowers may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in any of its Revolving Credit Commitmentthe Floor Plan Commitments, as applicable, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities entities, excluding, in each case, any Ineligible Institution (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit extend such Floor Plan Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Increasing Lender and Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrowers and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Lender and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower Borrowers, the Administrative Agent and each such Augmenting Lender and Increasing Lender execute an agreement substantially in the form of Exhibit H heretoa Lender Addition and Acknowledgement Agreement. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit the Floor Plan Commitments pursuant to this Section 2.15. 2.21.
(b) Increases and new Revolving Credit Commitments Floor Plan Commitments, as applicable, created pursuant to this Section 2.15 2.21 shall become effective on the date agreed by the BorrowerBorrowers, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no such increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) Floor Plan Commitments, as applicable, shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by an Authorized a Financial Officer of the Borrower Borrowers and (B) the Borrower Borrowers shall be in compliance (on a pro forma basis) with the covenant contained in Section 9.3 6.13(a), and (ii) the Administrative Agent shall have approved such increase and shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. .
(c) On the effective date of any increase in the Revolving Credit Floor Plan Commitments, as applicable, being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit applicable Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage (as modified by such increase) of such outstanding Revolving Credit Loans, and (ii) the Borrower Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments Floor Plan Commitments, as applicable (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the BorrowerBorrowers, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Floor Plan Commitment hereunder.
Appears in 2 contracts
Sources: Floor Plan First Lien Credit Agreement (Alta Equipment Group Inc.), Floor Plan First Lien Credit Agreement (B. Riley Principal Merger Corp.)
Expansion Option. (a) The Borrower Company may from time to time after the Closing Date elect to increase the U.S. Revolving Credit Commitments, Alternative Currency Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”), in minimum increments each case in an aggregate principal amount of not less than $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of all such increases does Increased Commitments would not exceed $50,000,00075,000,000. The Borrower Company may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its U.S. Revolving Credit Commitment, Alternative Currency Revolving Commitments or Extended Revolving Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing U.S. Revolving Credit Commitment, Alternative Currency Revolving Commitments or Extended Revolving Commitment, or extend U.S. Revolving Commitments, Alternative Currency Revolving Commitments or provide new Extended Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, Lender and each Increasing Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the consent of any Lenders other than the relevant Increasing Lenders or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate Company, to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder2.19.
Appears in 2 contracts
Sources: Credit Agreement (Dole PLC), Credit Agreement (Dole PLC)
Expansion Option. The Borrower may from time Sublandlord hereby grants to time elect Subtenant, one (1) option to increase expand the Revolving Credit Commitments Subleased Premises (the “Option to Expand”) to include the entire seventh (7th) floor of the Building, consisting of approximately 34,950 RSF (the “Expansion Space”) described in minimum increments Exhibit A-4 attached hereto, but only in strict accordance with the terms and conditions of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000this Section 1(b). The Borrower may arrange for any such increase Option to Expand must be provided exercised by one or more Lenders irrevocable written notice (each Lender so agreeing the “Expansion Option Exercise Notice”) delivered to an increase in its Revolving Credit CommitmentSublandlord no later than January 1, an “Increasing Lender”)2018, or by one or more new bankstime being of the essence, financial institutions or other entities (each such new bankand if not timely exercised will expire and terminate. If Subtenant timely exercises the Option to Expand, financial institution or other entitySubtenant shall sublease from Sublandlord, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender)and Sublandlord shall sublease to Subtenant, which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, commencing as of the case may be; provided that later of (i) each Augmenting LenderJanuary 1, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 2019 and (ii) the Administrative Agent shall have received documents date Sublandlord delivers the Expansion Space free of all tenants, with all base Building systems serving the Expansion Space and opinions consistent with those delivered on for which Sublandlord has maintenance or repair responsibility under the effective date as Master Lease in good working order and broom-clean and ready for occupancy (such date, the “Expansion Date”), the Expansion Space, and from and after the Expansion Date, any references in this Sublease to the organizational power Subleased Premises shall be deemed to include the Expansion Space unless the context clearly requires otherwise. Sublandlord will use reasonable efforts to permit Subtenant and authority its agents to enter the Expansion Space on a non-exclusive basis one (1) week prior to the Expansion Date for the sole purpose of preparing the Expansion Space for Subtenant’s use and occupancy; Subtenant expressly acknowledges that the Expansion Space may have employees, contractors and/or vendors retained by Sublandlord or the prior subtenant of Sublandlord present during any such early access and will coordinate any such access with Sublandlord and will not interfere with any such employees, contractors or vendors in the Expansion Space during such one (1) week early access period. The Base Rent payable for the Expansion Space will be the same rate per RSF that is payable hereunder with respect to the Subleased Premises, inclusive of annual increases in such rate and the Base Year for the Expansion Space shall be the calendar year 2017. There will be no Abatement Period with respect to the Expansion Space. As of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsExpansion Date, (i) each relevant Increasing Lender and Augmenting Lender Subtenant’s Percentage Share (defined in Section 3(b)(6) below) shall make available to the Administrative Agent such amounts be increased as provided in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, Section 3(b)(6) below and (ii) Subtenant’s allocated parking spaces in the Borrower Parking Facility shall be deemed to have repaid increased as provided in Section 20 below. Notwithstanding any other provision of this Sublease or the Master Lease, Sublandlord shall deliver, and reborrowed all outstanding Revolving Credit Loans as of Subtenant shall accept, the date of any increase Expansion Space in the Revolving Credit Commitments manner described in Section 14.1 below, and Sublandlord shall have no obligation to make any improvements to the Expansion Space, except as expressly provided in this Sublease, provided that Sublandlord will make certain Furniture (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified described in a notice delivered by the Borrower, Section 15 below) available for Subtenant’s use in accordance with the requirements terms of Section 2.915. If Subtenant timely exercises the Option to Expand, Sublandlord shall use commercially reasonable efforts to deliver the Expansion Space to Subtenant on or before January 1, 2019. If Sublandlord is unable to deliver the Expansion Space on or before January 1, 2019, Sublandlord shall have no liability therefor, except that Subtenant shall have no liability to pay any Rent on the Expansion Space until the Expansion Space is delivered to Subtenant. If after Subtenant has delivered its Expansion Option Exercise Notice Sublandlord has not delivered the Expansion Space to Subtenant as of March 1, 2019 (the “Outside Expansion Delivery Date”). The deemed payments made pursuant , Subtenant shall have the right to clause (ii) terminate this Sublease, with respect to the subleasing of the immediately preceding sentence Expansion Space only, by written notice thereof delivered to Sublandlord on or before March 15, 2019; provided that the Outside Expansion Delivery Date will be delayed on a day-for-day basis for each day that Sublandlord’s delivery of the Expansion Space to Subtenant is delayed due to (x) force majeure (inclusive of the holding over by the prior subtenant in the Expansion Space), up to a maximum delay for force majeure of ninety (90) days or (y) the act or omission of Subtenant. If Subtenant timely exercises the Option to Expand, Sublandlord shall prepare and deliver to Subtenant an amendment to this Sublease to reflect the addition of the Expansion Space, the increased Rent, the increase in allocated parking spaces and any other matter reasonably required by the terms of this Sublease. If Subtenant is in Default at the time of Subtenant’s delivery of the Expansion Option Exercise Notice or on the Expansion Date, then the Option to Expand shall, at Sublandlord’s sole discretion, terminate, whereupon no exercise of the Option to Expand shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender force or effect, unless such termination is waived in writing by Sublandlord. Sublandlord has not granted any third party sublease rights (or sublease expansion rights) which are superior to increase its Revolving Credit Commitment hereunderSubtenant’s Option to Expand.
Appears in 2 contracts
Sources: Sublease (Nerdwallet, Inc.), Sublease (Nerdwallet, Inc.)
Expansion Option. The Borrower may from time to time elect to increase request that the Revolving Credit Commitments be increased in a minimum increments amount of $25,000,000 10,000,000 (or such lesser amount as unless otherwise agreed by the Administrative Agent may agreeAgent) so long as, after giving effect theretothereto and taking into account any prior increase or increases to the Commitments effected pursuant to this Section 2.23, the aggregate amount of such increases does Commitments do not exceed $50,000,000550,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities acceptable to the Administrative Agent (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide extend new Revolving Credit Commitments, as the case may be; , provided that (i) each Augmenting Lender, Lender shall be subject reasonably acceptable to the approval of the BorrowerAdministrative Agent, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Borrower, the Administrative Agent and such Increasing Lender shall execute an agreement substantially in the form of Exhibit G D hereto, and (y) in the case of an Augmenting Lender, the Borrower Borrower, the Administrative Agent and such Augmenting Lender shall execute an agreement substantially in the form of Exhibit H E hereto. No consent of , and (iii) any Lender (other than the Lenders participating approached to so increase its Commitment may elect or decline, in the its sole discretion, to provide any such increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases in Commitments and new Revolving Credit Commitments created pursuant to this Section 2.15 2.23 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the . The Administrative Agent shall notify the Borrower and each Lender thereofof the effective date of any increase in the Commitments. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) ), shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) each paragraph of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and Borrower, (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increaseincrease and (iii) the Administrative Agent shall have received written opinions addressed to the Administrative Agent and the Lenders and dated the effective date of such increase of counsel to the Loan Parties in form and substance reasonably satisfactory to the Administrative Agent. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of each Class of outstanding Loans is equivalent to such outstanding Revolving Credit Loans, Lender’s Applicable Percentage the Commitments and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, Borrower in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, BA Loan and BA Equivalent Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.17 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 2 contracts
Sources: Credit Agreement (Biovail Corp International), Credit Agreement (Biovail Corp International)
Expansion Option. The Borrower Company may from time to time elect to increase the 2023 Revolving Credit Commitments or enter into one or more additional tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases of 2023 Revolving Commitments and all such Incremental Term Loans, together with all Permitted Equivalent Indebtedness incurred pursuant to Section 6.01(v), does not exceed $50,000,000500,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent (such consent not to be unreasonably withheld or delayed) and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company, provided that if the Company intends to use the proceeds of the new Commitments or Incremental Term Loans for the consummation of a Limited Condition Acquisition, the conditions set forth in Section 4.02 may, to the extent mutually agreed by the Company and the applicable Increasing Lenders or Augmenting Lenders, be limited to, with respect to Section 4.02(a), customary specified or certain funds representations and, with respect to Section 4.02(b), the absence of an Event of Default under Sections 8.01(a), (h) and (i), and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis) with the covenant contained in Section 9.3 6.08 and (ii) the Administrative Agent shall have received documents and opinions (including legal opinions) consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding 2023 Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment 2023 Applicable Percentage of such outstanding 2023 Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding 2023 Revolving Credit Loans as of the date of any increase in the 2023 Revolving Credit Commitments (with such reborrowing to consist of the Types of 2023 Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, unless waived by any applicable Lender in its reasonable discretion, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment (and if applicable, security) with the Loans under the existing Revolving Facility and the Term Loan Facility, (b) shall not mature earlier than the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans (but may have amortization prior to such date) and, (c) may participate on a pro rata basis or a less than pro rata basis (but not a greater than pro rata basis) than the Term Loans in any mandatory prepayment hereunder and (d) shall constitute a separate Class and shall be treated substantially the same as (and in any event no more favorably than) the Loans under the existing Revolving Facility and the Term Loan Facility; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans and (ii) the Incremental Term Loans may be priced differently than the Loans under the existing Revolving Facility and Term Loan Facility. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20 (including, without limitation, to provide that Section 2.27 may apply to such Incremental Term Loans). Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 2 contracts
Sources: Credit Agreement (Capri Holdings LTD), Credit Agreement (Capri Holdings LTD)
Expansion Option. The Subsequent to the Effective Date, the Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,00075,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 2 contracts
Sources: Credit Agreement (Layne Christensen Co), Credit Agreement (Layne Christensen Co)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date), (c) shall have terms as agreed between the Borrower and the Lenders providing such Incremental Term Loans and reasonably acceptable to the Administrative Agent and (d) be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Healthequity Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”) or any combination of such increases and Incremental Term Loans, in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 100,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000600,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Increasing Lender and Augmenting Lender, Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent Agent, the Swingline Lender and each Issuing Bank and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant contained in Section 9.3 6.09 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 1 contract
Expansion Option. The Borrower may from time to time elect to (i) increase the Revolving Credit Commitments (each a “Revolver Increase”) and/or (ii) request one or more term loan facilities hereunder (each, a “Term Loan Facility” and, together with any Revolver Increase, an “Expansion Event”), in each case upon notice to the Administrative Agent (which shall promptly notify the Lenders) in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 50,000,000 so long as, after giving effect thereto, the aggregate principal amount of all such increases increasesExpansion Events does not exceed an amount equal to (x) $50,000,000200,000,000 minus (y) the aggregate principal amount of term loans funded in reliance on Section 6.01(m). At the time of sending any such notice with respect to a Revolver Increase, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than five Business Days from the date of delivery of such notice to the Lenders). EachWith respect to a Revolver Increase, each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment. The Administrative Agent shall notify the Borrower may arrange and each Lender of the Lenders’ responses to each request for any such increase to be provided by one or more Lenders a Revolver Increase made hereunder (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”). To achieve the full amount of a requested increaseRevolver Increase and/or to provide for a Term Loan Facility, or the Borrower may arrange for (1) any such increaseRevolver Increase to be provided by the Increasing Lenders as well as one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting LenderRevolving Lender”), which agree to provide new Commitments, and/or (2) any such Term Loan Facility to be provided by one or more new banks, financial institutions or other entities that agree to provide commitments for such Term Loan Facility (which, for the avoidance of doubt, may include any existing Lender) (each such new bank, financial institution or other entity, an “Augmenting Term Lender” and, together with the Augmenting Revolving Lenders, the “Augmenting Lenders”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided further that (i) each Augmenting Lender, shall be subject to the approval of the BorrowerBorrower and, each Letter of Credit Issuer and the Administrative Agent and, in the case of Augmenting Revolving Lenders, the Swingline Lender and each Issuing Bank, such approvals not to be unreasonably withheld or delayed, and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoB-1 hereto or other agreement or amendment to this Agreement in form satisfactory to the Administrative Agent, and (y) in the case of an Augmenting Revolving Lender, the Borrower and such Augmenting Revolving Lender execute an agreement substantially in the form of Exhibit H heretoB-2 hereto or other agreement or amendment to this Agreement in form satisfactory to the Administrative Agent. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments CommitmentsExpansion Event pursuant to this Section 2.152.04. Increases and new Revolving Credit Commitments CommitmentsExpansion Events created pursuant to this Section 2.15 2.04 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no Expansion Event (or increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincreaseExpansion Event, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increaseincreaseExpansion Event. On the effective date of any increase in the Revolving Credit CommitmentsCommitmentsRevolver Increase, (i) each relevant Increasing Lender and Augmenting Revolving Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.04 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or to provide a new commitment in respect of a Term Loan Facility, at any time.
Appears in 1 contract
Sources: Credit Agreement (Dean Foods Co)
Expansion Option. (i) The Borrower may from time to time after the Closing Date elect to increase the Aggregate Revolving Credit Commitments Loan Commitment (each, a “Revolving Loan Increase”) or increase the aggregate principal amount of any Class of Term Loans or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum amounts of $50,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases Revolving Loan Increases and such Incremental Term Loans (other than Incremental Term Loans in respect of Refinancing Term Loans) does not exceed (A) (i) an aggregate amount equal to the greater of (x) $50,000,000600,000,000 and (y) 100.0% of Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower most recently ended on or prior to such date for which Financial Statements have been delivered plus (ii) the aggregate principal amount of any prepayments of Term Loans (in the case of Term Loans consisting of Incremental Term Loans (or any refinancing thereof) solely to the extent incurred in reliance on this clause (A)) made pursuant to Section 2.04(a) following the Closing Date to the extent not funded with the proceeds of Indebtedness for borrowed money plus (B) an additional amount, so long as, after giving effect to the incurrence of such additional amount (and assuming for such purposes that the entire amount of any such Revolving Loan Increase is fully funded), the pro forma First Lien Net Leverage Ratio does not exceed 2.75 to 1.00 (or, if such Indebtedness is incurred in connection with a Permitted Acquisition, the First Lien Net Leverage Ratio in effect immediately prior thereto); provided that, for purposes of this clause (B), net cash proceeds of Incremental Term Loans incurred at such time shall not be netted against the applicable amount of Consolidated First Lien Indebtedness for purposes of such calculation of the First Lien Net Leverage Ratio at such time; provided, further, that the aggregate principal amount of the sum of all (x) Revolving Loan Increases, taken as a whole, plus (y) Incremental Term Loans incurred in the form of “term A loans” (which shall mean a term loan facility with amortization (without giving effect to any increase made solely to make such Incremental Term Loans fungible with any Term Loans) greater than 1.0% per year prior to maturity or that mature prior to the Term Loan B Maturity Date), taken as a whole, shall not exceed $300,000,000. The Borrower may arrange for any such increase Revolving Loan Increase or Incremental Term Loan to be provided by one or more existing Lenders (each existing Lender so agreeing to an increase in its Revolving Credit Loan Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit CommitmentsLoan Commitments or to participate in such Incremental Term Loans (it being agreed that any Lender approached to provide any such Revolving Loan Increase or Incremental Term Loans may elect or decline, in its sole discretion, to provide such Revolving Loan Increase or provide new Revolving Credit Commitments, as the case may beIncremental Term Loans); provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and, in the case of a Revolving Loan Increase, the Issuing Banks (which consent shall not be unreasonably withheld or delayed), and (ii) with respect to any Revolving Loan Increase, (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoE-1 hereto (each, an “Increasing Lender Supplement”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoE-2 hereto (each, an “Augmenting Lender Supplement”). No consent of any Lender (other than the Lenders participating in the increaseRevolving Loan Increase or Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments Loan Increase or Incremental Term Loans pursuant to this Section 2.15Section 2.05(b)(i), as applicable. Revolving Loan Increases and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 Section 2.05(b)(i), shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Incremental Term Loans may be made hereunder pursuant to an amendment or an amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.05(b). Notwithstanding the foregoing, no increase in the Aggregate Revolving Credit Commitments Loan Commitment (or in the Revolving Credit Loan Commitment of any Lender) or Incremental Term Loans shall become effective under this paragraph unless, :
(i1) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a(a) and (b(b) of Section 6.2 Section 5.03 shall be satisfied or waived by the Required Lenders; provided that if the proceeds of such Incremental Term Loans are being used to finance a Limited Condition Acquisition, (i) the condition set forth in such paragraph (a) shall be satisfied or waived by the Required Lenders as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into and (ii) the condition set forth in such paragraph (b) shall be limited to the accuracy of the Specified Representations, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and Borrower; and
(B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii2) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date pursuant to Sections 5.02 and 5.03 as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. increase (including, without limitation, opinions of counsel for the Borrower and the Subsidiary Guarantors in form and substance reasonably satisfactory to the Administrative Agent).
(ii) On the effective date of any increase in the Revolving Credit CommitmentsLoan Increase, (iA) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Revolving Lender’s portion of the outstanding Revolving Credit Loans of all the Revolving Lenders to equal its such Revolving Lender’s Pro Rata Share of Revolving Credit Commitment Percentage of Availability at such outstanding Revolving Credit Loans, time and (iiB) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Loan Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice Borrowing/Election Notice delivered by the Borrower, Borrower in accordance with the requirements of Section 2.9Section 2.07). The deemed payments made pursuant to clause (ii(B) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Rate Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 Section 4.04 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 .
(iii) The terms and conditions of any Revolving Loan Increase and the Incremental Term Loans shall constitute, or otherwise be deemed to be, except as otherwise set forth herein or in the applicable Revolving Loan Increase or Incremental Term Loan Amendment, identical to those of the Revolving Loan Commitment, Term A Loans and Term B Loans, as applicable; provided that (A) (x) if the All-in Yield for any Incremental Term Loans (other than Incremental Term Loans in respect of Refinancing Term Loans) that is a commitment “term A facility” (which shall mean a term loan facility with amortization (without giving effect to any increase made solely to make such Incremental Term Loans fungible with any Term Loans) greater than 1.0% per year prior to maturity or that mature prior to the Term Loan B Maturity Date) exceeds the All-in Yield for the(x) prior to the Amendment No. 2 Effective Date, the Initial Term A Loans and (y) on or after the part Amendment No. 2 Effective Date, the 2019 Term A Loans, in each case, by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term A Yield Differential”), then the Applicable Margin for the Term A Loans shall automatically be increased by the Term A Yield Differential (plus, if elected by the Borrower in its sole discretion, an additional amount in order to make the Term A Loans fungible with such Incremental Term Loans), effective upon the making of such Incremental Term Loans and (y) if the All-in Yield for any Incremental Term Loans (other than Incremental Term Loans in respect of Refinancing Term Loans) that is a “term B facility” (which shall mean a term loan facility with amortization (without giving effect to any increase made solely to make such Incremental Term Loans fungible with any Term Loans) less than or equal to 1.0% per year prior to maturity) exceeds the All-in Yield for the Term B Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term B Yield Differential”), then the Applicable Margin for the Term B Loans shall automatically be increased by the Term B Yield Differential (plus, if elected by the Borrower in its sole discretion, an additional amount in order to make the Term B Loans fungible with such Incremental Term Loans), effective upon the making of such Incremental Term Loans; provided that this clause (A) shall not be applicable to any Incremental Term Loan that (x) is incurred after the date that is twelve months following the Closing Date or (y) incurred in connection with a Change of Control or transformative acquisition not otherwise permitted under the this Agreement (this clause (A) being referred to herein as the “MFN Provision”), (B) no Incremental Term Maturity Date shall be earlier than the Term Loan B Maturity Date (unless such Incremental Term Loans are a "term A facility" as described above, in which event, the applicable Incremental Term Maturity Date shall not be earlier than the(x) prior to the Amendment No. 2 Effective Date, the Initial Term Loan A Maturity Date and (y) on and after the Amendment No. 2 Effective Date, the 2019 Term Loan A Maturity Date), (C) the Weighted Average Life to Maturity of any Lender Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to increase its Maturity of the Term B Loans (unless such Incremental Term Loans are a "term A facility" as described above, in which event, the applicable Weighted Average Life to Maturity shall be no shorter than the remaining Weighted Average Life to Maturity of the(x) prior to the Amendment No. 2 Effective Date, the Initial Term A Loans and (y) on and after the Amendment No. 2 Effective Date, the 2019 Term A Loans), (D) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party, (E) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to Term Loans, and (F) to the extent the terms of the Incremental Term Loans are inconsistent with the terms of the Term Loans (except as set forth in clauses (A), (B) and (C) above), (i) such terms shall be reasonably satisfactory to the Administrative Agent and (ii) to the extent such terms are more favorable to the Incremental Lenders than the terms hereof to the Term Lenders, the Borrower may elect to conform to such terms for the benefit of all of the Term Lenders pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent. For the avoidance of doubt, all terms of any Revolving Credit Commitment hereunderLoan Increase (including the Applicable Margin thereon) shall be identical to the terms of the Revolving Facility.
Appears in 1 contract
Sources: Incremental Term Loan Amendment and Refinancing Amendment (Energizer Holdings, Inc.)
Expansion Option. The Borrower may from time to time elect to increase (a) Provided: (i) Tenant is not then in default of the Revolving Credit Commitments Lease; (ii) no more than 3 monetary Events of Default have occurred within any 60-consecutive month period after the date of this Amendment; (iii) the Lease is in minimum increments of $25,000,000 full force and effect; (iv) Tenant is the originally named Tenant (or such lesser amount its transferee under a Permitted Transfer); and (v) Tenant (or its transferee under a Permitted Transfer) is then occupying 100% of the Premises for the conduct of Tenant’s business (or for the conduct of a transferee’s business under a Permitted Transfer), then Tenant has the option (“Expansion Option”) to lease all (but not less than all) of the approximately 13,220 rentable square feet known as Suite 2-200 and shown on Exhibit A-4 attached hereto (“Expansion Space”) upon the Administrative Agent may agree) so long asterms and conditions set forth in this Section. If Tenant desires to exercise the Expansion Option, after giving effect thereto, Tenant shall send a written notice to Landlord of its irrevocable exercise of the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders Expansion Option (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderTenant’s Expansion Notice”), or which must be received by one or more new banksLandlord before May 31, financial institutions or other entities 2022, time being of the essence. Upon Tenant’s delivery of Tenant’s Expansion Notice, Tenant may not thereafter revoke Tenant’s exercise of the Expansion Option. The Term for the Expansion Space shall commence on the date (each such new bank, financial institution or other entity, an “Augmenting LenderExpansion Space Commencement Date”; provided ) that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as is the case may be; provided that earlier of: (i) each Augmenting Lender, shall be subject to the approval date on which Tenant first occupies all or any portion of the Borrower, each Letter Expansion Space for the conduct of Credit Issuer and the Administrative Agent and any business; or (ii) 90 days after the date Landlord delivers possession of the Expansion Space to Tenant.
(xb) Notwithstanding anything to the contrary in the case of an Increasing Lenderthis Lease, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoExpansion Option shall be subject, subordinate, and (y) in all respects inferior to the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent rights of any Lender third party leasing space at the Building under its existing lease for the Expansion Space (other than including, without limitation, any lease term extension period(s) contained in such tenant’s lease, regardless of whether the Lenders participating extension right or agreement is contained in the increase) shall be required for such lease or is agreed to at any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed time by the Borrower, the Administrative Agent Landlord and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereoftenant under such lease). Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, Landlord: (i) on agrees not to grant the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase existing tenant in the Revolving Credit CommitmentsExpansion Space an option or right to extend its term past November 1, (i) each relevant Increasing Lender and Augmenting Lender shall make available 2023, unless such right is subordinate to Tenant’s right to lease the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determineExpansion Space provided Tenant provides Tenant’s Expansion Notice before May 31, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans2022, and (ii) represents and warrants to Tenant that no other third party leasing space at the Borrower Building has, or will have, rights to the Expansion Space beyond September 1, 2023. If an Event of Default exists at the time Landlord receives Tenant’s Expansion Notice or on the first day that Tenant commences to lease the Expansion Space, Landlord, at Landlord’s option, shall have the right to nullify Tenant’s exercise of the Expansion Option with respect to the Expansion Space.
(c) Tenant shall take the Expansion Space in “AS IS” condition, and Landlord shall have no obligation to make any improvements or alterations to the Expansion Space. With respect to the Expansion Space, Tenant shall pay Tenant’s Share of Operating Expenses and utilities pursuant to the terms of this Lease. Except to the extent expressly set forth in this Section to the contrary, if Tenant elects to lease the Expansion Space, such space shall become subject to the Lease upon the same terms and conditions as are then applicable to the original Premises, including without limitation the Expiration Date. Upon the Expansion Space Commencement Date, the “Premises” shall include the Expansion Space and, except as otherwise set forth in this Section, all computations made under the Lease based upon or affected by the rentable area of the Premises shall be deemed recomputed to have repaid and reborrowed all outstanding Revolving Credit Loans include the Expansion Space.
(d) (i) Base Rent for the first year that Tenant leases the Expansion Space shall be at the Expansion Option Rent (as defined below) multiplied by the number of the date of any increase rentable square feet in the Revolving Credit Commitments Expansion Space (with such reborrowing to consist of as measured per BOMA standards as set forth in the Types of Revolving Credit LoansCurrent Lease). When Base Rent for the first year that Tenant will lease the Expansion Space is being determined, with related LIBOR Periods if applicable, specified in a notice delivered by Base Rent for the Borrower, second and all subsequent years that Tenant will lease the Expansion Space shall also be determined (in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (iisame procedures as are set forth herein for determining the Expansion Option Rent) of based upon the immediately preceding sentence shall be accompanied by payment of all accrued interest on then-prevailing annual rent escalation factor in the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderapplicable leasing market.
Appears in 1 contract
Sources: Lease (BigCommerce Holdings, Inc.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit total 2020 Dollar Tranche Commitments or the total 2020 Multicurrency Tranche Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000300,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit 2020 Dollar Tranche Commitment or 2020 Multicurrency Tranche Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit CommitmentsCommitments of the applicable Class, or to participate in such Incremental Term Loans, or provide new Revolving Credit CommitmentsCommitments of the applicable Class, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments of any Class (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Restatement Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments of any Class or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other LendersLenders of such Class, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of such Class of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such Class, as applicable, of such outstanding Revolving Credit LoansLoans of such Class, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans of such Class as of the date of any increase in the Revolving Credit Commitments of such Class (with such reborrowing to consist of the Types of Revolving Credit LoansLoans of such Class, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) shall not mature earlier than the 2020 Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the initial Term Loans; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the 2020 Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the 2020 Maturity Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. No Lender shall be committed to increase its Revolving Commitment and/or to provide any portion of any Incremental Term Loans in respect of any exercise by the Borrower pursuant to this Section 2.20 without the consent of such Lender.
Appears in 1 contract
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 and not less than $10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000150,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (TimkenSteel Corp)
Expansion Option. (a) The Borrower Borrowers may from time to time after the Closing Date elect to increase any Class of Revolving Commitments or any Extended Revolving Commitments (the Revolving Credit Commitments “Increased Commitments”) in minimum increments an aggregate principal amount of not less than $10,000,000 and/or the Borrowers may from time to time after the Closing Date elect to add one or more tranches of term loans (each, an “Incremental Term Loan” and, together with any Increased Commitments, an “Incremental Facility”) in an aggregate principal amount of not less than $25,000,000 (or such lesser amount so long as the Administrative Agent aggregate amount of all such Increased Commitments and all such Incremental Term Loans (other than Other Term Loans), as the case may agreebe, would not exceed the greater of (x) so long as$150,000,000 and (y) the amount of Increased Commitments and/or Incremental Term Loans, as the case may be, such that the Consolidated Leverage Ratio shall be no greater than 2.50 to 1.00 (which shall be deemed to (x) include the full amount of any Increased Commitments, assuming the full amount of such Increased Commitments has been drawn, and (y) exclude the cash proceeds of the borrowings under any such Increased Commitments or Incremental Term Loans but not the use of such proceeds) as of the last day of the most recently ended Test Period for which financial statements of Holdings have been delivered pursuant to Section 5.01(a) and (b), after giving effect thereto, to the aggregate amount establishment or incurrence of such increases does not exceed $50,000,000Increased Commitments and/or Incremental Term Loans (other than Other Term Loans), as the case may be, and any Specified Transaction consummated in connection therewith. The Borrower applicable Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit CommitmentCommitment or Extended Revolving Commitments, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments or Extended Revolving Commitments, or provide new Revolving Credit Commitments, as the case may beto participate in such Incremental Term Loan; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer applicable Borrowers and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the Borrowers, to effect the provisions of this Section 2.152.18. Increases of Revolving Commitments and Extended Revolving Commitments and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.18 shall become effective on the date agreed by the Borrowerapplicable Borrowers, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Extended Revolving Credit Commitment of any Lender) Commitments or Incremental Term Loans shall become effective be permitted under this paragraph unless, Section 2.18 unless (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent no Default shall have received a certificate to that effect dated such date occurred and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 continuing or would result therefrom and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered Consolidated Leverage Ratio, calculated on the effective date as to the organizational power and authority of the Borrower to borrow hereunder a Pro Forma Basis after giving effect to the establishment or incurrence of such increaseIncreased Commitments or Incremental Term Loans, as the case may be, and any Specified Transaction consummated in connection therewith (which shall be deemed to (x) include the full amount of any Increased Commitments, assuming the full amount of such Increased Commitments has been drawn, and (y) exclude the cash proceeds of the borrowings under any such Increased Commitments or Incremental Term Loans but not the use of such proceeds), shall not exceed 2.50:1.00 as of the last day of the most recently ended Test Period of Holdings for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or Extended Revolving Commitments or any Incremental Term Loans being made, (i) except in the case of any Incremental Term Loans, each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, Loans and (ii) except in the Borrower case of any Incremental Term Loans, if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be deemed prepaid to have repaid the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and reborrowed Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Credit Loans as of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.18) of all then outstanding Revolving Loans of such Class. Notwithstanding the date foregoing, no prepayment of such Revolving Loans shall be applied to Loans of any increase Defaulting Lender. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Commitments (with such reborrowing transactions effected pursuant to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9)immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.14 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained The terms of any Incremental Term Loans shall be as set forth in the amendment to this Section 2.15 Agreement providing for such Incremental Term Loans; provided that (i) no Lender will be required to participate in any such Incremental Facility, (ii) the final maturity date of any Incremental Term Loans shall constitutebe no earlier than the Term Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Domestic Term Loans, (iv) [reserved], (v) [reserved], (vi) any Increased Commitments shall be on terms and pursuant to documentation applicable to the applicable Class of Revolving Commitments or Extended Revolving Commitments and may include provisions relating to swingline loans and/or letters of credit, as applicable, issued thereunder, which issuances shall be on terms substantially similar (except for the overall size of such subfacilities, the fees payable in connection therewith and the identity of the swingline lender and issuing bank, as applicable, which shall be determined by the applicable Borrowers, the lenders of such commitments and the applicable issuing bank and swingline lenders and borrowing, repayment and termination of commitment procedures with respect thereto, in each case which shall be specified in the applicable Additional Credit Extension Amendment) to the terms relating to Swingline Loans and Letters of Credit with respect to the applicable Class of Revolving Commitments or otherwise reasonably acceptable to the Administrative Agent and (vii) any Incremental Term Loans shall be deemed on terms and pursuant to bedocumentation, a commitment including conditions, to be determined by the applicable Borrowers and the Increasing Lenders and/or the Augmenting Lenders party thereto; provided that, to the extent such terms and documentation are not consistent with the Term A Facility (except to the extent permitted by clause (ii), (iii) or (iv) above) they shall be reasonably satisfactory to the Administrative Agent.
(b) Any Incremental Increase shall be on terms and pursuant to documentation applicable to the part applicable Class of Revolving Commitments or Extended Revolving Commitments or Term Loans or Extended Term Loans.
(c) This Section 2.18 shall override any Lender provisions in Section 9.02 to increase its Revolving Credit Commitment hereunderthe contrary.
Appears in 1 contract
Sources: Credit Agreement (Genpact LTD)
Expansion Option. (a) The Borrower Company may from time to time elect to increase the Aggregate Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of Consolidated Leverage Ratio shall be at least 0.25:1.00 less than the ratio required to be maintained at such increases does not exceed $50,000,000. time by Section 7.12(a) (but subject to Section 1.03(e) with respect to any Incremental Term Loan requested with respect to any Limited Condition Acquisition).
(b) The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G H hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H I hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in the Aggregate Revolving Credit Commitments or Incremental Term Loans pursuant to this Section 2.152.14. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.14 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. .
(c) Notwithstanding the foregoing, no increase in the Aggregate Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph Section 2.14 unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received (1) a certificate to that effect of each Loan Party dated such as of the effective date and executed of any increase in the Aggregate Revolving Commitments or any Incremental Term Loans being made signed by an Authorized a Responsible Officer of such Loan Party (i) certifying and attaching the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and resolutions adopted by such Loan Party approving or consenting to such increase, and, (ii) in the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority case of the Borrower Company, including a Compliance Certificate demonstrating pro forma compliance with Section 7.12 after giving effect to borrow hereunder such increase (but subject to Section 1.03(e) with respect to any Incremental Term Loan requested with respect to any Limited Condition Acquisition) and (iii) certifying that, before and after giving effect to such increase. , (X) the representations and warranties contained in Article V are true and correct on and as of the effective date of any increase in the Aggregate Revolving Commitments or any Incremental Term Loans being made (except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct as of such earlier date, and except that for purposes of this Section 2.14, the representation and warranties contained in subsections (a), (b) and (c) of Section 5.05 shall be deemed to refer to the most recent statement furnished pursuant to clauses (a), (b) and (c), respectively, of Section 6.01) (but subject to Section 1.03(e) with respect to any Incremental Term Loan requested with respect to any Limited Condition Acquisition) and (Y) no Default or Event of Default exists (but subject to Section 1.03(e) with respect to any Incremental Term Loan requested with respect to any Limited Condition Acquisition) and (2) if reasonably requested by the Agent, a favorable opinion of counsel to the Loan Parties acceptable to the Agent, addressed to the Agent and each Lender, as to such matters concerning the Loan Parties with respect to such increase to the Aggregate Revolving Commitments or such Incremental Term Loan, as applicable, in form and substance satisfactory to the Agent.
(d) On the effective date of any increase in the Aggregate Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage Pro Rata Share of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the applicable Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Aggregate Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the BorrowerBorrowers, in accordance with the requirements of Section 2.92.02). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 3.05 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods.
(e) Any Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans and any other Incremental Term Loans, (ii) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (iii) 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 that (A) 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 (B) any Incremental Term Loans may be priced differently than the Revolving Loans and any other Incremental Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Agent, to effect the provisions of this Section 2.14.
(f) Nothing contained in this Section 2.15 2.14 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. This Section shall supersede any provisions in Section 10.01 to the contrary.
Appears in 1 contract
Expansion Option. The Borrower may from time to time elect elect, not more than six (6) times during the term of this Agreement, to increase the Revolving Credit General Partnership Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000100,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, Commitment an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide extend new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G F hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H G hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders Lenders, and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Original Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.such
Appears in 1 contract
Sources: Credit Agreement (Inergy L P)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,00060,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new to participate in such Incremental Term Loans, or extend Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loans pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated as of such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the initial Term Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Angiodynamics Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments enter into a maximum of three additional tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of all such increases Incremental Term Loans does not exceed $50,000,000100,000,000. The Borrower may arrange for any such increase tranche to be provided by one or more Lenders (each Lender so agreeing to an increase participate in its Revolving Credit Commitmentsuch Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may beparticipate in such Incremental Term Loans; provided that (i) each Increasing Lender and Augmenting Lender, Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent Agent, which, in the case of the Administrative Agent, shall not be unreasonably withheld and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseany Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment tranche of any Lender) Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseIncremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant contained in Section 9.3 6.09 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increaseIncremental Term Loans. On the effective date of any increase in the Revolving Credit CommitmentsIncremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (iic) shall be treated substantially the same as (and in any event no more favorably than) the Borrower shall be deemed Loans; provided that (i) the terms and conditions applicable to have repaid and reborrowed all outstanding Revolving Credit any tranche of Incremental Term Loans as of maturing after the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.applicable only during 37
Appears in 1 contract
Expansion Option. The Borrower may from (a) Subject to Rights of Existing Tenants in and to the Available Area (hereinafter defined) and the terms and conditions of this Section 3, Tenant is hereby granted the one-time option (the “Expansion Option”) to time elect expand the Premises to increase include between 2,500 and 5,000 square feet of the Revolving Credit Commitments in minimum increments Rentable Area on the third (3rd) floor of $25,000,000 the Building (or such lesser amount the exact size, location, and configuration of which shall be reasonably designated by Landlord) (the “Expansion Space”) which is vacant and available for lease as of the Administrative Agent may agreefirst day of the fifth (5th) so long asLease Year (the “Available Area”). Tenant acknowledges and agrees that if, after giving effect theretoas of the first day of the fifth (5th) Lease Year, the aggregate amount of such increases there does not exceed $50,000,000or will not exist Expansion Space within the Available Area, then Tenant’s Expansion Option shall be null and void. The Borrower Without limiting the foregoing, in no event shall Landlord be required to relocate common areas or facilities to create Available Area or to demise Available Area to create the Expansion Space if Landlord determines, in Landlord’s sole but reasonable judgment, that the remaining Available Area (the “Non-Leased Space”) will be unsuitable, undesirable or inconsistent with Landlord’s leasing efforts in the Building (whether by reason of its remaining size, configuration, access to Building amenities or systems, or otherwise).
(b) Tenant may arrange for any such increase only exercise the Expansion Option by delivering written notice (the “Expansion Notice”) to Landlord no earlier than the first day of the fourth (4th) Lease Year and no later than the date which is six (6) full months prior to the commencement of the fifth (5th) Lease Year (the “Expansion Notice Deadline”). Following receipt of the Expansion Notice, Landlord shall designate the location of the Expansion Space to be provided subject to lease by one or more Lenders (each Lender so agreeing Tenant hereunder by written notice to an increase in its Revolving Credit CommitmentTenant or, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided if Landlord concludes that no Ineligible Institution may Expansion Space will be an Augmenting Lender)available for lease within the Available Area as of the first day of the fifth (5th) Lease Year, which agree Landlord shall notify Tenant as such by written notice, whereupon Tenant’s exercise of the Expansion Option shall be deemed null and void. Tenant shall not be permitted to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as exercise the case may be; provided that Expansion Option if (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of Tenant’s Expansion Notice, any increase Default exists or Landlord has provided written notice to Tenant regarding any non-payment of money required to be paid by Tenant hereunder which, if not paid by Tenant within the applicable cure period, will constitute a Default under the Lease; or (ii) Tenant has assigned its interest in the Revolving Credit Commitments Lease or sublet more than thirty-five percent (with such reborrowing to consist 35%) of the Types Rentable Area of Revolving Credit Loansthe Premises (other than an Affiliate Transferee).
(c) Once designated by Landlord, the exact size and location of the Expansion Space shall be subject to further adjustment by Landlord as necessary to accommodate applicable laws and to preserve the marketability of the Non-Leased Space, it being the intent of the parties that the Expansion Space and the Non-Leased Space shall be demised in compliance with related LIBOR Periods applicable laws and be marketable to prospective third party tenants. In addition, if applicableall or any portion of the Expansion Space is not separately demised, specified Landlord shall construct demising wall(s) to separately demise the Expansion Space and shall perform all other work necessary to separately demise the Expansion Space in accordance with all applicable laws and in accordance with Building standards. Such demising work (the “Demising Work”) shall be performed at Tenant’s sole cost and expense and may include, without limitation, all work necessary to provide direct access from the Expansion Space and the Non-Leased Space to the common areas on the floor of the Building (including the elevator lobby and restrooms). Tenant shall reimburse Landlord, within thirty (30) days following Landlord’s demand, for all costs and expenses incurred by Landlord in connection with the design and construction of the Demising Work.
(d) Time is of the essence with respect to Tenant’s delivery of the Expansion Notice. The Expansion Notice shall constitute Tenant’s irrevocable election to expand the Premises to include the applicable Expansion Space, subject to Landlord’s determination that Expansion Space is available hereunder as described above. In the event that Tenant fails to deliver the Expansion Notice prior to the Expansion Notice Deadline, or otherwise fails to comply with any other condition to the exercise of the Expansion Option, the Expansion Option shall terminate and be null, void and of no further force or effect.
(e) If Tenant delivers an Expansion Notice within the time and in the manner provided in this Section 3, then the following terms shall apply to the leasing of the Expansion Space:
(i) Landlord shall deliver the Expansion Space to Tenant on the date (the “Expansion Date”) which is no later than thirty (30) days following the first day of the fifth (5th) Lease Year; provided, however, notwithstanding anything to the contrary contained in this Lease, if, for any reason, Landlord is unable to deliver possession of the Expansion Space to Tenant on or before the foregoing date, Landlord shall not be liable for any damage caused thereby, nor shall this Lease be void or voidable, but, rather, the Expansion Date shall be the date on which Landlord actually delivers possession of the Expansion Space to Tenant.
(ii) as of the Expansion Date, the Expansion Space shall be added to, and become a notice delivered part of, the Premises, and, except as otherwise set forth in this Section 3, Tenant’s lease thereof shall be governed by all of the provisions of this Lease, which shall continue in full force and effect and be applicable to the Expansion Space;
(iii) as of the Expansion Date, the Rentable Area of the Premises shall be increased by the BorrowerRentable Area of the Expansion Space, and Tenant’s Pro Rata Share shall be increased accordingly;
(iv) Landlord shall provide to Tenant such economic concessions (such as rental abatements and an improvement allowance) as Landlord determines to be included within the Fair Market Rental Rate;
(v) the Base Rental payable by Tenant for the Expansion Space shall be the Fair Market Rental Rate (fully taking into account the economic concessions that Landlord will, or will not, provide to Tenant hereunder, including any period during which Tenant is entitled to occupancy but not required to pay Rent set forth in subsection (vi), below), determined in accordance with the requirements same procedures set forth in Section 1, above; and
(vi) Tenant shall commence paying all Base Rental and Tenant’s Pass-Through Expenses for the Expansion Space on the date which is one hundred twenty (120) days following the Expansion Date.
(f) Upon Tenant’s exercise of Section 2.9). The deemed payments made pursuant its Expansion Option, each party shall execute and deliver to clause (ii) the other party a mutually-acceptable amendment modifying the Lease, which amendment to this Lease shall evidence the leasing of the immediately preceding sentence shall be accompanied Expansion Space by payment of all accrued interest Tenant on the amount prepaid and, in respect terms and conditions of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 3; provided, however, that failure to execute such an amendment shall constitute, or otherwise not affect the parties’ rights and obligations hereunder.
(g) The Expansion Option shall automatically expire and be deemed of no further force and effect in the event that Tenant exercises its Preferential Right or Early Termination Option. For the avoidance of doubt, if Tenant exercises the Early Termination Option (hereinafter defined), Tenant shall have no right to be, a commitment on exercise the part of any Lender to increase its Revolving Credit Commitment hereunderExpansion Option.
Appears in 1 contract
Sources: Office Lease (Connecture Inc)
Expansion Option. The Borrower ▇▇▇▇▇▇ may from time to time elect to increase the Revolving Credit Commitments Aggregate Commitment or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000, so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000325,000,000. The Borrower ▇▇▇▇▇▇ may arrange for any such increase or tranche to be provided by one or more Syndicated Global Lenders (each Syndicated Global Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, Lender shall be subject to the approval of Harley, the Borrower, each Letter of Credit Issuer Global Administrative Agent and the Administrative Agent Global Swing Line Lender (not to be unreasonably withheld, conditioned or delayed) and (ii) (x) in the case of an Increasing Lender, the Borrower Harley and such Increasing Lender execute an agreement substantially in the form of Exhibit G F-1 hereto, and (y) in the case of an Augmenting Lender, the Borrower Harley and such Augmenting Lender execute an agreement substantially in the form of Exhibit H F-2 hereto. No consent of any Syndicated Global Lender (other than the Syndicated Global Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments the Aggregate Commitment or Incremental Term Loan pursuant to this Section 2.152.4(b). Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.4(b) shall become effective on the date agreed by the Borrower▇▇▇▇▇▇, the Global Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Global Administrative Agent shall notify each Syndicated Global Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments Aggregate Commitment (or in the Revolving Credit Commitment of any Syndicated Global Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent no event shall have received occurred and then be continuing which constitutes a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 Default or Unmatured Default and (ii) the Global Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Closing Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increaseincrease or Incremental Term Loans, as the case may be. On the effective date of any increase in the Revolving Credit CommitmentsAggregate Commitment or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Global Administrative Agent such amounts in immediately available funds as the Global Administrative Agent shall determine, for the benefit of the other Syndicated Global Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Syndicated Global Lenders, each Syndicated Global Lender’s portion of the outstanding Revolving Credit Syndicated Global Loans of all the Syndicated Global Lenders to equal its Revolving Credit Commitment Percentage Pro Rata Share of such outstanding Revolving Credit Syndicated Global Loans, and (ii) the Borrower Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Syndicated Global Loans as of the date of any increase in the Revolving Credit Commitments Aggregate Commitment (with such reborrowing to consist of the Types of Revolving Credit Syndicated Global Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or Harley on behalf of the applicable Borrower, in accordance with the requirements of Section 2.9Sections 2.5 and 2.6). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount deemed prepaid and, in respect of each LIBOR Eurocurrency Rate Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 3.4 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained The Incremental Term Loans (a) shall rank pari passu in this Section 2.15 right of payment with the Syndicated Global Loans, (b) shall constitute, or otherwise be deemed have a maturity date that is no earlier than the scheduled Termination Date (but may have amortization prior to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.such date) and
Appears in 1 contract
Sources: 5 Year Credit Agreement
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,00075,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent Agent, (ii) no Augmenting Lender shall be the Borrower or any Subsidiary or Affiliate of the Borrower and (iiiii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G E hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H F hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 Sections 6.07, 6.08 and 6.09 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the Incremental Term Loans as described in this Section 2.15 2.20; provided that any such Incremental Term Loan Amendment shall constitute, require that any waivers or otherwise be deemed to be, a commitment on amendments of Section 4.02 (including the part waiver of any Default that has the effect of waiving the conditions in Section 4.02) shall also require the written consent or approval of Lenders having Revolving Credit Exposures and unused Commitments in respect of Revolving Loans representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments in respect of Revolving Loans. Notwithstanding the foregoing and for the avoidance of doubt, no Lender shall have any obligation to increase its Revolving Credit Commitment hereunderor provide Incremental Term Loans pursuant to this Section 2.20.
Appears in 1 contract
Sources: Credit Agreement (Tredegar Corp)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G E hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H F hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.22. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.22 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the initial Term Loans, as applicable; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the initial Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.22. Nothing contained in this Section 2.15 2.22 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Rogers Corp)
Expansion Option. (a) The Borrower Company may from time to time after the Restatement Effective Date elect to increase the U.S. Revolving Credit Commitments or any Extended Revolving Commitments (other than Extended Revolving Commitments that replaced the European Revolving Commitments) (the “Increased Commitments”) or add one or more tranches of term loans (each, an “Incremental Term Loan”), as applicable, in minimum increments each case in an aggregate principal amount of not less than $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of all such increases Increased Commitments and all such Incremental Term Loans (other than Refinancing Term Loans) does not exceed $50,000,000750,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its U.S. Revolving Credit CommitmentCommitment or Extended Revolving Commitments, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing U.S. Revolving Credit Commitments or Extended Revolving Commitments, or provide new Revolving Credit Commitments, as the case may beto participate in such Incremental Term Loan; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section 2.152.19. Increases of U.S. Revolving Commitments, and Extended Revolving Commitment and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the U.S. Revolving Credit Commitments (or in the Extended Revolving Credit Commitment of any Lender) Commitments or Incremental Term Loans shall become effective be permitted under this paragraph unless, clause unless (i) on the proposed date of the effectiveness of such increase, (A) increase in the U.S. Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan the conditions set forth in paragraphs clauses (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and Company, (ii) the Administrative Agent shall have received such opinions and other certificates and documents as it may reasonably request and opinions consistent (iii) the Company shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with those delivered on the effective date covenants contained in Section 6.09 as to the organizational power and authority of the Borrower last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to borrow hereunder after giving effect Section 5.01(a) or (b) prior to such increasetime. On the effective date of any increase in the U.S. Revolving Credit CommitmentsCommitments or Extended Revolving Commitments or any Incremental Term Loans being made (assuming that any Increased Commitments were fully drawn), (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as case of any Incremental Term Loans, if, on the date of such increase, there are any increase in the U.S. Revolving Credit Commitments (with such reborrowing to consist Loans of the Types applicable Class outstanding, such U.S. Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional U.S. Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered Loans made hereunder by the BorrowerIncreasing Lenders and Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding U.S. Revolving Loans of such Class owing to each Lender with a U.S. Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding U.S. Revolving Loans of such Class. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in accordance with this Agreement shall not apply to the requirements of Section 2.9)transactions effected pursuant to the immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower Company pursuant to the provisions of Section 2.11 2.15 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part The terms of any Incremental Term Loans shall be as set forth in the amendment to this Agreement providing for such Incremental Term Loans; provided that (i) no Lender will be required to increase its participate in any such Incremental Facility, (ii) the final maturity date of any Incremental Term Loans shall be no earlier than the U.S. Term A Loan Maturity Date, U.S. Term A-1 Loan Maturity Date, U.S. Term A-2 Loan Maturity Date or European Term A Loan Maturity Date, (iii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the U.S. Term A Loans, U.S. Term A-1 Loans, U.S. Term A-2 Loans or European Term A Loans, (iv) Incremental Term Loans shall not participate on a greater than pro rata basis with the other Term Loans in any optional or mandatory prepayment hereunder, (v) the interest margins, fees and original issue discount for the Incremental Term Loans shall be determined by the Borrower and the lenders of the Incremental Term Loans; provided that if the effective yield (defined as the sum of (x) the LIBO Rate for such Incremental Term Loans (after giving effect to any minimum rate applicable thereto) plus (y) the Applicable Margin for such Incremental Term Loans plus (z) the quotient of (I) the amount of original issue discount and upfront fees on such Incremental Term Loans divided by (II) four) exceeds the effective yield of the European Term B-1 Loans (determined in a consistent manner with the determination set forth above) by more than 50 basis points, then the Applicable Margins for the European Term B-1 Loans shall be increased to the extent necessary so that the effective yield of the European Term B-1 Loans is equal to the effective yield of such Incremental Term Loans minus ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, (▇▇) Incremental Term Loans and Increased Commitments shall be secured on a pari passu basis with the other Loans of the Company and (vii) any Increased Commitments shall be on terms and pursuant to documentation applicable to the U.S. Revolving Credit Commitment hereunderCommitments or Extended Revolving Commitments and any Incremental Term Loans shall be on terms and pursuant to documentation to be determined, provided that, to the extent such terms and documentation are not consistent with the U.S. Term A Facility, U.S. Term A-1 Facility, U.S. Term A-2 Facility and U.S. Revolving Facility (except to the extent permitted by clause (ii), (iii), (iv) or (v) above) they shall be reasonably satisfactory to the Administrative Agent. The Company shall seek commitments in respect of any Incremental Facility from existing Lenders or from additional banks, financial institutions and other institutional lenders reasonably acceptable to the Administrative Agent who will become Lenders in connection therewith.
(b) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
Appears in 1 contract
Expansion Option. The Borrower Following the Closing Date, the Company may from time to time time, but no more than two times during the term of this Agreement, elect to increase the Revolving Credit Aggregate Commitments and/or to incur one or more tranches of term loans (each tranche of term loans, an “Incremental Term Facility”; and each term loan under any Incremental Term Facility, an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of all such increases in the Aggregate Commitments and all such Incremental Term Facilities does not exceed $50,000,000250,000,000. The Borrower Company may arrange for any such increase or Incremental Term Facility to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Facility, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities constituting Eligible Assignees (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Facility, or provide new Revolving Credit Commitments, as the case may be; provided that that: (a) each Augmenting Lender shall be (i) each Augmenting Lenderin the case of an increase to the Aggregate Commitments, shall be subject to the approval of the BorrowerCompany, the Administrative Agent (such approval not to be unreasonably withheld or delayed), each Letter L/C Issuer and the Swing Line Lender, and (ii) in the case of Credit Issuer an Incremental Term Facility, subject to the approval of the Company and the Administrative Agent (such approval not to be unreasonably withheld or delayed), and (ii) (xb)(i) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender shall execute an agreement substantially in the form of Exhibit G heretoIncreasing Lender Supplement, and (yii) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender shall execute an agreement substantially in the form of Exhibit H heretoAugmenting Lender Supplement. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Facility) shall be required for any increase in Revolving Credit Aggregate Commitments or for any Incremental Term Facility pursuant to this Section 2.15. Increases and new Revolving Credit Commitments and Incremental Term Facilities created pursuant to this Section 2.15 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Aggregate Commitments (or in the Revolving Credit Commitment of any Lender) and no Incremental Term Facility shall become effective under this paragraph Agreement unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Facility, (A) the conditions set forth in paragraphs (aSections 4.02(a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders Lenders, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company, and (B) the Borrower Company shall be in pro forma compliance with the covenant covenants contained in Section 9.3 and 7.11 (ii) determined on the basis of the financial information most recently delivered to the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as Lenders pursuant to Section 6.01(a) or Section 6.01(b) (or, if prior to the organizational power and authority date of the Borrower delivery of the first financial statements to borrow hereunder after giving effect be delivered pursuant to such increaseSections, the most recent financial statements referred to in Section 5.05(b)) and, if the first proviso in Section 7.11 is then applicable, as though such Indebtedness had been incurred, and any Indebtedness repaid as part of such transaction had been repaid, as of the first day of the period of four fiscal quarters covered thereby). On the effective date of any increase in the Revolving Credit Aggregate Commitments, (ia) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Committed Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Committed Loans, and (iib) except in the Borrower case of any Incremental Term Loans made under any Incremental Term Facility, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Committed Loans as of the date of any increase in the Revolving Credit Aggregate Commitments (with such reborrowing to consist of the Types of Revolving Credit Committed Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, applicable Borrower in accordance with the requirements of Section 2.92.02). The deemed payments made pursuant to clause (iib) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Rate Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 3.05 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Any Incremental Term Loans (a) shall rank pari passu in right of payment with the Committed Loans and any other then-existing Incremental Term Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date), (c) shall have pricing that is determined by the Lenders providing such Incremental Term Loans and the Company, and (d) except as provided above, shall be treated substantially the same as (and in any event no more favorably than) the Committed Loans, unless otherwise on terms reasonably satisfactory to the Administrative Agent and agreed by the Lenders providing such Incremental Term Loans and the Company; provided that the terms and conditions applicable to any Incremental Term Loans may only provide for material additional or different financial or other covenants or prepayment requirements to the extent such terms and conditions are (i) only applicable during periods after the Maturity Date, or (ii) added for the benefit of Administrative Agent and all of the Lenders. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in the Incremental Term Facility under which such Incremental Term Loans are made, each Augmenting Lender participating in the Incremental Term Facility under which such Incremental Term Loans are made, if any, and the Administrative Agent. Each Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.15. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide any Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Perkinelmer Inc)
Expansion Option. The Borrower may from time to time elect to increase request the Revolving Credit Commitments establishment of one or more incremental term loan commitments to make one or more additional term loans (i) either as a separate tranche of term loans or (ii) for which the principal amount of the borrowing of such additional term loan will be added to the outstanding principal amount of the existing Loans (any such additional term loan described in clause (i) or (ii), an “Incremental Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 15,000,000 so long as, after giving effect thereto, the aggregate amount of all such increases Incremental Loans does not exceed $50,000,000150,000,000. The Borrower may arrange for any such increase additional term loan to be provided by one or more Lenders (each Lender so agreeing to an increase participate in its Revolving Credit Commitmentsuch Incremental Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may beparticipate in such Incremental Loans; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent (which approvals shall not be unreasonably withheld and shall be evidenced by the Administrative Agent’s execution 36 of the agreement substantially in the form of Exhibit C or Exhibit D, as the case may be) and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in any Incremental Loan, which consent shall be deemed to have occurred upon execution of an agreement substantially in the increaseform of Exhibit C or Exhibit D, as the case may be) shall be required for any increase in Revolving Credit Commitments Incremental Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments New Incremental Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments Incremental Loans (or in the Revolving Credit Commitment of any Lendercommitments therefor) shall become effective under this paragraph unless, (i) on the proposed date specified in the agreement substantially in the form of the effectiveness of such increaseExhibit C or Exhibit D, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower certifying that (x) the representations and warranties of the Borrower set forth in this Agreement shall be true and correct in all material respects (or, in the case of any such representation or warranty qualified by materiality or Material Adverse Effect, in all respects) on and as of the date of such Incremental Loan, other than any such representation or warranty given as of a particular date in which case they shall be true and correct in all material respects (or, in the case of any such representation or warranty qualified by materiality or Material Adverse Effect, in all respects) as of such date and (y) at the time of and immediately after giving effect to such Incremental Loan, no Default or Event of Default shall have occurred and be continuing and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.05 and (ii) the Administrative Agent shall have received (to the extent not previously received, or to the extent reasonably requested, in each case by the Administrative Agent) documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On The Incremental Loans
(a) shall be an amortizing term loan available in a single draw, (b) shall rank pari passu in right of payment with the effective date of then existing Loans, (c) shall not mature earlier than the Maturity Date, and (d) shall be treated substantially the same as (and in any increase in event not more favorably than) the Revolving Credit Commitments, existing Loans; provided that (i) each relevant Increasing Lender the terms and Augmenting Lender shall make available conditions applicable to any tranche of Incremental Loans maturing after the Administrative Agent Maturity Date hereunder then in effect at the time of the effectiveness of such amounts in immediately available funds tranche of Incremental Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after such Maturity Date or, so long as the Administrative Agent shall determine, also applying for the benefit of the other Lenders, as being required in order existing Loans outstanding prior to cause, after giving effect to such increase thereto, may provide for additional covenants and/or events of default agreed upon by the Borrower, the Administrative Agent, the Augmenting Lenders and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Increasing Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall Incremental Loans may be deemed to have repaid priced differently than the Loans and reborrowed all outstanding Revolving Credit Loans may provide for amortization payments as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered agreed upon by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant Administrative Agent, the Augmenting Lenders and the Increasing Lenders (subject to clause (iii) above). Incremental Loans may also be made hereunder pursuant to an amendment or restatement (an “Incremental Loan Amendment”) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in respect of each LIBOR such Incremental Loan, shall if any, each Augmenting Lender participating in such Incremental Loan, if any, and the Administrative Agent. The Incremental Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be subject necessary or appropriate, in the reasonable opinion of the Administrative Agent, to indemnification by the Borrower pursuant to effect the provisions of this Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase provide Incremental Loans, at any time (other than as otherwise expressly agreed to by any applicable Lender in the agreements substantially in the form of Exhibit C and Exhibit D as provided above). In connection with any Incremental Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, 37 its Revolving Credit Commitment hereunder.name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. SECTION 2.21. [
Appears in 1 contract
Sources: Asset Purchase Agreement
Expansion Option. The Borrower Borrowers may from time to time (other than during the Covenant Relief Period) elect to increase (an “Incremental Increase”) the Revolving Credit total Dollar Tranche Commitments or the total Multicurrency Tranche Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans (other than the Incremental US Term Loans) plus the aggregate principal amount of all Incremental Equivalent Debt incurred on or prior to such date does not exceed $50,000,000the Incremental Amount then in effect. The Borrower Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree other than an Ineligible Institution, to increase their existing Revolving Credit Commitments, or provide new to participate in such Incremental Term Loans, or extend Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the BorrowerCompany, each Letter the Administrative Agent, the Issuing Banks (in the case of Credit Issuer an increase in the Revolving Commitments) and the Administrative Agent Swingline Lender (in the case of an increase in the Revolving Commitments), (ii) no Augmenting Lender shall be the Company or any Subsidiary or Affiliate of the Company and (iiiii) (x) in the case of an Increasing Lender, the applicable Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the applicable Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the applicable Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower Company; provided, however that in the case of any Incremental Increase the proceeds of which are to be used to finance a substantially concurrent Permitted Acquisition that is not conditioned upon the availability of, or obtaining, third-party financing (any such Permitted Acquisition being a “Limited Conditionality Acquisition”), to the extent agreed by the Lenders providing such Incremental Increase, (1) the representations and warranties the accuracy of which are a condition to the availability of such Incremental Increase shall be limited to customary “SunGuard” or other applicable “certain funds” conditionality provisions and (2) the condition to availability of such Incremental Increase requiring that no Default or Event of Default shall have occurred and be continuing shall be limited to (I) at the time of the execution and delivery of the definitive agreement for such Limited Conditionality Acquisition no Event of Default shall have occurred and be continuing or shall occur as a result thereof and (II) no Event of Default under clauses (a) or (f) of Article VII shall exist immediately prior to or after giving effect to such Incremental Increase (which Event of Default under this clause (II), for the avoidance of doubt, cannot be waived without the written consent of the Required Lenders); and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.18; provided that in the case of any Incremental Increase the proceeds of which are to be used to finance a Limited Conditionality Acquisition, to the extent agreed by the Lenders providing such Incremental Increase, there shall be no condition to the availability of the Incremental Increase related to the financial covenants contained in Section 6.18 (other than, to the extent applicable, the incurrence test with respect thereto contained in the definition of Incremental Amount); and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Original Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments of any Class or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other LendersLenders of such Class, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of such Class of all the Lenders to equal its Revolving Credit Commitment Dollar Tranche Percentage or Multicurrency Tranche Percentage, as applicable, of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans of such Class as of the date of any increase in the Revolving Credit Commitments of such Class (with such reborrowing to consist of the Types of Revolving Credit LoansLoans of such Class, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan and BA Equivalent Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the Term Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the Term Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans and the Term Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. In connection with any increase of the Revolving Commitments or Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act. For the avoidance of doubt, in no event shall this Section 2.20 be available to the Borrowers during the Covenant Relief Period.
Appears in 1 contract
Sources: Credit Agreement (LKQ Corp)
Expansion Option. (a) The Borrower may from time to time after the Expansion Date elect to increase the Revolving Credit Commitments or any Extended Revolving Commitments (“Increased Commitments”) or enter into one or more tranches of term loans (each, an “Incremental Term Loan”), in minimum increments each case in an aggregate principal amount of not less than $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of all such increases Increased Commitments and all such Incremental Term Loans (other than Refinancing Term Loans) does not exceed $50,000,000500,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment or Extended Revolving Commitment, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit CommitmentsCommitment or Extended Revolving Commitment, or provide new to participate in such Incremental Term Loan, or extend Revolving Credit Commitments or Extended Revolving Commitments, as the case may be; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.19. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Extended Revolving Credit Commitment of any Lender) Commitments or Incremental Term Loan shall become effective be permitted under this paragraph unless, unless (i) on the proposed date of the effectiveness of such increaseincrease in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (Bii) the Borrower (x) Parent shall be in compliance compliance, calculated on a Pro Forma Basis with the covenant contained in Section 9.3 6.09 as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time and (iiy) on a Pro Forma Basis, the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Consolidated Senior Leverage Ratio would be less than or equal to 2.0 to 1.0 as to the organizational power and authority of the Borrower last day of the most recent fiscal quarter of Parent for which financial statements have been delivered pursuant to borrow hereunder after giving effect to such increaseSection 5.01(a) or (b). On the effective date of any increase in the Revolving Credit CommitmentsCommitments or Extended Revolving Commitments or any Incremental Term Loans being made (assuming that any Increased Commitments were fully drawn), (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be deemed prepaid to have repaid the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and reborrowed Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Credit Loans as owing to each Lender with a Revolving Commitment is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans. The Administrative Agent and the date of any increase Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Commitments (with such reborrowing transactions effected pursuant to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9)immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.15 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part The terms of any Lender Incremental Term Loans shall be as set forth in the amendment to increase its Revolving Credit Commitment this Agreement providing for such Incremental Term Loans; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Term Loan A Maturity Date, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Tranche A Term Loans (or, if no Tranche A Term Loans are outstanding at such time, the Tranche B Term Loans), (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Tranche A Term Loans or Tranche B Term Loans in any optional or mandatory prepayment hereunder, (iv) the provisions with respect to payment of interest, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans; provided that if (x) the Yield of any Incremental Term Loans (other than Refinancing Term Loans) exceeds the Yield of the Tranche B Term Loans and/or (y) the Yield of any Incremental Term Loans with a final maturity prior to the Term B Loan Maturity Date or a Weighted Average Life to Maturity that is shorter than the then remaining Weighted Average Life to Maturity of the Tranche B Term Loans exceeds the Yield of the Tranche A Term Loans, in either case, by more than 50 basis points, then the Applicable Rate for the applicable Term Loans specified in the foregoing clauses (x) and/or (y) shall be increased to the extent required so that the Yield of such Class or Classes of Term Loans is equal to the Yield of such Incremental Term Loans minus 50 basis points and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (iv) above) shall be the same as the terms of the then outstanding Tranche A Term Loans and Tranche B Term Loans except to the extent such covenants and other terms apply solely to any period after the Term B Loan Maturity Date.
(b) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
Appears in 1 contract
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 50,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000250,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G I hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H J hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.07 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment (an “Incremental Term Loan Amendment”) to this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder2.20.
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Expansion Option. (i) The Borrower may from time to time after the Closing Date elect to increase the Aggregate Revolving Credit Commitments Loan Commitment (each, a “Revolving Loan Increase”) or increase the aggregate principal amount of any Class of Term Loans or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum amounts of $50,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases Revolving Loan Increases and such Incremental Term Loans (other than Incremental Term Loans in respect of Refinancing Term Loans) does not exceed (A) (i) an aggregate amount equal to the greater of (x) $50,000,000. The 600,000,000 and (y) 100.0% of Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower may arrange most recently ended on or prior to such date for which Financial Statements have been delivered plus (ii) the aggregate principal amount of any prepayments of Term Loans (in the case of Term Loans consisting of Incremental Term Loans (or any refinancing thereof) solely to the extent incurred in reliance on this clause (A)) made pursuant to Section 2.04(a) following the Closing Date to the extent not funded with the proceeds of Indebtedness for borrowed money plus (B) an additional amount, so long as, after giving effect to the incurrence of such additional amount (and assuming for such purposes that the entire amount of any such increase Revolving Loan Increase is fully funded), the pro forma Senior Secured Leverage Ratio does not exceed 3.00 to 1.00 (or, if such Indebtedness is incurred in connection with a Permitted Acquisition, the Senior Secured Leverage Ratio in effect immediately prior thereto); provided that, for purposes of this clause (B), net cash proceeds of Incremental Term Loans incurred at such time shall not be provided by one or more Lenders netted against the applicable amount of Consolidated First Lien Indebtedness for purposes of such calculation of the Senior Secured Leverage Ratio at such time plus (each Lender so agreeing to an increase C) solely in its Revolving Credit Commitmentconnection with the redemption of the Existing 2027 Notes in accordance with the 2027 Notes Conditional Redemption Notice, an aggregate principal amount of $650,000,000 (the “Increasing Lender2027 Notes Redemption Basket”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, only Incremental Term Loans (and not a Revolving Loan Increase) shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent permitted by this clause (C) and (ii) such Incremental Term Loans shall be incurred in one Advance that shall occur no more than one (1) Business Day prior to such redemption of the Existing 2027 Notes; provided, further, that the aggregate principal amount of the sum of all (x) in the case of an Increasing LenderRevolving Loan Increases, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretotaken as a whole, and plus (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 1 contract
Expansion Option. The Borrower may from time All existing options to time elect to increase expand the Revolving Credit Commitments Premises set forth in minimum increments the Lease, whether a right of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long asfirst refusal, after giving effect thereto, the aggregate amount right of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions first offer or other entities right to expand, are deleted, and are replaced with the option to expand the Premises set forth in the balance of this Paragraph 5.
(each such new banka) During the Term, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lenderthis Lease is in full force and effect, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) Tenant is not in default under the Lease beyond the expiration of any applicable notice and cure period given to Tenant in the case Lease, (iii) Tenant has not assigned this Lease or subleased all or any portion of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoPremises under any then-existing sublease, and (yiv) the right of first offer described in this Paragraph 5 is not being exercised in connection with or for the case purpose of an Augmenting Lenderfacilitating any such assignment or sublease, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent Landlord shall give Tenant notice of any Lender space (other than the Lenders participating in the increase“ROFO Space”) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective located on the date agreed by third or the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date fifth floors of the effectiveness Building that is available for lease to third parties. (For purposes of such increasethis Paragraph, (A) the conditions set forth any space covered by a renewal, extension or expansion option existing in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lendertenant’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans lease as of the date of this Amendment, any renewal or extension option given by Landlord to any then-existing tenant for its then- existing space, or any right of first offer or right of first refusal existing as of the date of this Lease, shall not be “available for lease” until after each such option or right has expired.)
(b) If Tenant gives Landlord notice of Tenant’s interest in leasing the ROFO Space within ten (10) business days after notification by Landlord of the availability of the ROFO Space, the Parties shall negotiate reasonably to enter into an amendment to this Lease covering the ROFO Space, which may include, without limitation, an extension of the Term and an increase in Base Rent payable under this Lease during such extension. If Tenant fails to give Landlord such notice within such ten (10)- business day period, or if the Revolving Credit Commitments (with such reborrowing Parties, after using their best efforts, are unable to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest agree on the amount prepaid and, of the monthly rental and other terms and conditions for the ROFO Space within thirty (30) days after receipt by Landlord of Tenant’s notice of interest in respect of each LIBOR Loan, shall be subject to indemnification leasing the ROFO Space (as evidenced by the Borrower pursuant execution and delivery of an amendment to the provisions this Lease), such right of Section 2.11 if the deemed payment occurs first offer shall terminate and be of no further force or effect with respect to such ROFO Space, but shall continue to apply to other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereundersubsequently available ROFO Space.
Appears in 1 contract
Sources: Agreement of Lease
Expansion Option. The Borrower may from time to time elect after the Closing Date and not less than thirty (30) days prior to the end of the Availability Period, at its sole cost, expense and effort, request any one or more of the Lenders having a Commitment to increase its Commitment Amount (the decision to increase the Revolving Credit Commitments Commitment Amount of a Lender to be within the sole and absolute discretion of such Lender), or request any other Eligible Assignee reasonably satisfactory to the Administrative Agent to increase its Commitment Amount, and request the Issuing Bank to provide a new Commitment (each such requested commitment an “Incremental Commitment”), by submitting to 4839-9354-3409 v.6 the Administrative Agent a Commitment Increase Supplement, substantially in the form of Exhibit 2.15, duly executed by the Borrower and each such Lender or other Eligible Assignee (each, an “Incremental Lender”). In each case, such Incremental Commitment shall be in a minimum amount of $25,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 in excess thereof so long as, after giving effect thereto, the aggregate amount of such increases does Aggregate Commitments do not exceed $50,000,0001,250,000,000. The Borrower may arrange Nothing in this Agreement shall be construed to obligate the Administrative Agent, Arrangers or any Lender to negotiate for (whether or not in good faith), solicit, provide, or consent to any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or Commitments. Each Incremental Commitment shall become effective on a date agreed by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lendereach, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoa “Commitment Increase Date”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) which shall be required for in any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective case on or after the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders of satisfaction or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived waiver by the Required Lenders of the conditions precedent set forth in Section 4.03 and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Borrower. The Administrative Agent shall have received documents notify the Lenders and opinions consistent with those delivered the Borrower, on or before 1:00 p.m. on the effective date as to the organizational power and authority day following a Commitment Increase Date of the Borrower to borrow hereunder after giving effect to effectiveness of such increaseincrease in Commitments and shall record in the Register all applicable additional information in respect of such increase in Commitments. On the effective date Commitment Increase Date, each Incremental Lender participating in such Incremental Commitments shall be deemed to purchase and assume from each existing Lender having Loans and participations in Letters of any increase in the Revolving Credit Commitmentsoutstanding on such Commitment Increase Date, (i) each relevant Increasing Lender without recourse or warranty, an undivided interest and Augmenting Lender shall make available participation, to the Administrative Agent extent of such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit Lender’s Applicable Percentage of the other Lenders, as being required in order to cause, new Commitments (after giving effect to such increase in Commitments), in the aggregate outstanding Loans and participations in Letters of Credit, so as to ensure that, on the use of such amounts to make payments Commitment Increase Date after giving effect to such other Lendersincrease in Commitments, each Lender’s portion Lender is owed only its Applicable Percentage of the Loans and participations in Letters of Credit outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit on such Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderIncrease Date.
Appears in 1 contract
Expansion Option. The Borrower may from time Notwithstanding anything to time elect the contrary in the Lease, except as set forth in this Eighth Amendment, Tenant shall have no option to increase expand the Revolving Credit Commitments Premises, and any other expansion rights previously granted under the Lease are hereby null and void and of no force or effect. Tenant’s rights under this Section 11 in minimum increments and to such option and expansion spaces are and shall be subject and subordinate to the rights and options of $25,000,000 tenants (and their successor and assigns unless their lease expressly restricts such rights only to the original tenant) pursuant only to (i) leases entered into prior to the Effective Date of this Eighth Amendment which contain superior rights of first offer or such lesser amount as the Administrative Agent may agree) so long asexpansion rights (individually, after giving effect theretoa “Superior Right” and collectively, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderSuperior Rights”), or by one or more new banks, financial institutions or other entities a complete list of such Superior Rights existing as of the Effective Date being listed on the attached Exhibit D (each such new bank, financial institution or other entity, lease being an “Augmenting LenderExisting Lease”; provided that no Ineligible Institution may be an Augmenting Lender), which agree but not any amendment, modification or assignment to increase their existing Revolving Credit Commitmentsor of an Existing Lease that expands a Superior Right, or provide purports to grant a new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval Superior Right affecting any of the BorrowerBuilding space which is the subject of Sections 11 or 12 of this Eighth Amendment, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case any extensions or renewals of an Increasing LenderExisting Lease, regardless of when executed or effective, by a current or then-existing tenant, provided that such extension or renewal does not expand a Superior Right existing as of the Borrower and such Increasing Lender execute an agreement substantially in Effective Date, or purport to grant a new Superior Right affecting any of the form Building space which is the subject of Exhibit G heretoSections 11 or 12 of this Eighth Amendment, and (yiii) any lease entered into by Landlord with a prospective tenant pursuant to, and in the case of an Augmenting Lendercompliance with, the Borrower and such Augmenting Lender execute an agreement substantially in the form terms of Exhibit H hereto. No consent Section 12 of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the BorrowerEighth Amendment, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions if Tenant does not accept Landlord’s offer set forth in paragraphs the ROFR Offer Notice (aas defined in such Section 12 of this Eighth Amendment) regarding the subject space, and any extensions or renewals of such lease, provided that such lease, extension or renewal does not expand a Superior Right existing as of the Effective Date, or purport to grant a new Superior Right affecting any of the Building space which is the subject of Sections 11 or 12 of this Eighth Amendment (items (i), (ii) and (biii) of Section 6.2 shall be satisfied or waived being, collectively, the “Subject and Subordinate Conditions”). During the Extended Lease Term, provided that there is no default by Tenant beyond any applicable cure period under the Required Lenders and the Administrative Agent Lease, Tenant shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.following expansion options:
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Expansion Option. The Borrower may from A. Provided that at the time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that exercise (i) each Augmenting Lender, shall be subject to the approval there then exists no Default of the Borrower, each Letter of Credit Issuer LESSEE beyond applicable notice and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loanscure periods, and (ii) this Lease is then in full force and effect, LESSEE shall have the Borrower right to lease between 10,000 to 20,000 additional contiguous rentable square feet in the Building (the "Expansion Space") by delivering written notice to LESSOR of LESSEE'S intent to lease the Expansion Space on or prior to December 1, 2004. Within ten (10) Business Days following receipt of such notice, LESSOR shall notify LESSEE of the exact size and location of the Expansion Space, which size and location shall be determined by LESSOR in its sole and absolute discretion. Basic Rent attributable to the Expansion Space shall be payable commencing as of the earlier to occur of (i) the date that LESSEE occupies the Expansion Space for the conduct of its business or (ii) March 16, 2005. The failure of LESSEE to notify LESSOR of LESSEE'S election to lease the Expansion Space as set forth in this Section shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of be an election by LESSEE not to lease Expansion Space.
B. If LESSEE elects to lease the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made Expansion Space pursuant to clause (ii) of this Section, the immediately preceding sentence Expansion Space shall be accompanied by payment of all accrued interest on leased upon the amount prepaid and, in respect of each LIBOR Loan, shall be subject same terms and conditions applicable to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing Spaces A and B as contained in this Section 2.15 shall constituteLease, or otherwise be deemed to beexcept that: the term of such Expansion Space shall, a commitment at LESSEE's option, expire either on the part fifth (5th) anniversary of the commencement date of LESSEE's lease of the Expansion Space or the expiration of the Term of Spaces A and B; and that LESSOR shall not be obligated to perform any Lender work or improvements to increase its Revolving Credit Commitment hereunderthe Expansion Space or to provide any allowance or other financial contribution other than, in the event of a five (5) year term, $37.00 per rentable square foot of Expansion Space, and in the event of a term in excess of seven (7) years, $40.00 per rentable square foot of Expansion Space. Upon LESSEE's election to lease the Expansion Space, LESSEE shall, within twenty (20) Business Days thereafter, execute an amendment to this Lease on a form provided by LESSOR adding the Expansion Space to this Lease and otherwise reflecting the terms of this Section. Should LESSEE fail to execute such amendment within such twenty (20) day period, such failure shall, at LESSOR's election, constitute a waiver of LESSEE's right to lease the Expansion Space pursuant to this Section.
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Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 15,000,000 so long as, as after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,00075,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit extend Commitments, as the case may be; provided that (i) each Augmenting Lender and Increasing Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and the Issuing Bank and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No Lender shall have any obligation to provide any such increase and each Lender may refuse to provide such increase in its absolute and sole discretion. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs clauses (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Deluxe Corp)
Expansion Option. In the event the tenant presently in occupancy of Suite 110 in the Building (the “Expansion Space”, comprising usable square feet, rentable square feet) should vacate the Expansion Space prior to the termination or earlier expiration of this Lease, then Lessee shall have the option (“Expansion Option”) to lease said Expansion Space subject to the following terms and conditions:
(a) The Borrower may from time Expansion Space shall be added to time elect the Premises demised under the Lease for a term commencing on the Expansion Space Commencement Date (defined below) and expiring upon the expiration or earlier termination of the Lease, and the term “Premises” used in the Lease shall thereafter be deemed to increase include the Revolving Credit Commitments in minimum increments Expansion Space;
(b) The “Expansion Space Commencement Date” for the Expansion Space shall be the date which is the earlier of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lenderthe date Lessee, shall be subject to the approval or any person occupying any of the BorrowerExpansion Space with Lessee’s permission, each Letter of Credit Issuer and commences business operations from the Administrative Agent and (ii) (x) in the case of an Increasing LenderExpansion Space, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent date on which the Expansion Space is delivered to Lessee in broom-clean condition;
(c) The Base Rental and Operating Expense Adjustment to be paid by Lessee for the Expansion Space shall be the Base Rental and Operating Expense Adjustment then in effect for the Premises, on a rentable square foot basis; furthermore, Lessee’s Pro Rata Share of Operating Expenses shall be appropriately increased to reflect the addition of the Expansion Space to the Premises;
(d) Lessee shall not have received documents and opinions consistent with those delivered the right to exercise the Expansion Option if at the time of exercise thereof, or on the effective date as Expansion Space Commencement Date, Lessee is in default beyond any applicable notice and cure period; and
(e) Lessor and Lessee shall execute and deliver appropriate documentation to memorialize the addition of the Expansion Space to the organizational power Premises hereunder and authority the terms and conditions of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available Lease with respect to the Administrative Agent Expansion Space, but any failure by Lessor or Lessee to execute and deliver any such amounts in immediately available funds as the Administrative Agent documentation shall determine, for the benefit not change any of the other Lenders, as being required in order to cause, after giving effect to such increase terms and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderconditions provided herein.
Appears in 1 contract
Sources: Lease Agreement (Manhattan Bancorp)
Expansion Option. The Borrower may from So long as this Lease shall remain in full force and effect at the time of exercise thereof by Tenant, Landlord hereby grants Tenant the right (the “Expansion Option”) to time elect to increase lease an additional 39,000 rentable square feet of space as shown on Exhibit “E” attached hereto and made a part hereof (the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderExpansion Space”), subject to the following terms and conditions:
(a) In the event that Tenant desires to exercise the Expansion Option, Tenant shall provide Landlord with written notice (the “Expansion Exercise Notice”) on or before the earlier of (i) the date that is ten (10) days after Landlord provided written notice to Tenant that it has found a party interested in leasing such space or (ii) the expiration of the second (2nd) Lease Year (the “Exercise Deadline”) of Tenant’s election to exercise the Expansion Option; provided, however, that, notwithstanding the foregoing, in the event that Tenant shall have elected not to provide Landlord with an Expansion Exercise Notice pursuant to the provisions of clause “i” hereinbefore and Landlord ultimately does not enter into a lease for such space with such interested party, then Tenant’s rights to the Expansion Option under this Section 31 (a) shall be reinstated and Landlord shall be obligated to give another such notice to Tenant at such time prior to the expiration of the second (2nd) Lease Year as Landlord shall again have found a party interested in leasing such space (with the further understanding that such reinstatement shall also continue to apply in any such subsequent situation where Landlord ultimately does not enter into a lease for such space with such subsequent interested party).
(b) In the event Tenant elects to lease the Expansion Space by one or more new banksgiving Landlord written notice pursuant to Section 31 (a) herein, financial institutions or then all other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree terms and conditions of the Lease shall apply to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided Expansion Space except that (i) the Annual Base Rent with respect to Expansion Space for the balance of the Initial Term shall be as determined by subparagraph (c) below; (ii) the Annual Base Rent with respect to Expansion Space for any Renewal Term, if applicable, shall be at the same base rental rate (on a dollars per square foot basis) payable with respect to the balance of the Demised Premises pursuant to Section 1(f) hereof; (iii) Tenant’s Fraction with respect to Operating Expenses shall be increased to take into account the additional square footage of the Expansion Space and all other figures in the Lease affected by the addition of such square footage shall be adjusted accordingly; and (iv) Tenant shall not be entitled to any allowances, credits, options or other concessions with respect to the Expansion Space, except as follows: Landlord shall provide a contribution toward the cost of constructing improvements to the Expansion Space (with the amount of such contribution be calculated by applying to the rentable square footage of the Expansion Space the same amount per rentable square foot as the amount of the Budgeted Total TI Costs provided for in Section 3(c) hereinabove applied to the rentable square footage of the original Demised Premises (appropriately decreased based on the amount of time remaining in the Term i.e., the rate per square foot of rentable square footage of the Demised Premises applicable to the original Budgeted Total TI Costs shall be pro-rated using a fraction, the numerator of which shall be the number of months remaining in the Initial Term from and after the date of the giving of the Expansion Exercise Notice and the denominator of which shall be the total number of months contained within the Initial Term.
(c) Commencing on the “Expansion Space Commencement Date” (as such term is hereinafter defined), the Annual Base Rent payable with respect to the Expansion Space during the remainder of the Initial Term shall be: Seventeen Dollars ($17.00) per rentable square foot for the first 30,000 rentable square feet (or total rentable square feet remaining in the Building less 9,000 rentable square feet, whichever is less) and Nine Dollars ($9.00) per rentable square foot for the remaining 9,000 rentable square feet, each Augmenting Lenderof which amounts shall increase by One Dollar ($1.00) per rentable square foot every three (3) years during the remainder of the Initial Term commencing on date which is (i) the third (3rd) anniversary of the Expansion Space Commencement Date, if the Expansion Space Commencement Date is the first day of a calendar month, or (ii) the first day of the calendar month next following the third (3rd) anniversary of the Expansion Space Commencement Date, if the Expansion Space Commencement Date is any day other than the first day of a calendar month.
(d) Except for any allowances set forth in Section 31(b)(iv) herein and the minimum base building work to be performed by Landlord pursuant to Exhibit “M” attached hereto, Tenant shall perform, at its sole cost and expense, all improvements which Tenant deems necessary or desirable for Tenant’s initial occupancy thereof, which improvements shall be subject to the prior written approval of Landlord, which approval shall not be unreasonably withheld, conditioned, or delayed. All contractors utilized for the Borrowerperformance of such improvements shall be subject to the prior written approval of Landlord (which approval shall not be unreasonably withheld, each Letter conditioned or delayed), and all work shall be performed in accordance with the Expansion Plans (as hereinafter defined) in a good and workmanlike manner and in accordance with all applicable laws. Prior to the commencement of Credit Issuer any work within the Expansion Space, Tenant shall submit to Landlord, for Landlord’s prior approval, proposed plans and specifications (the Administrative Agent “Proposed Expansion Plans”) for Tenant’s proposed improvements to the Expansion Space, which plans shall be prepared by a registered architect licensed to do business within the State in which the Property is located. The Proposed Expansion Plans shall include all information and specifications necessary for Landlord to fully review the work described therein and shall conform to all applicable laws and requirements of public authorities and insurance underwriters’ requirements. If Landlord disapproves the Proposed Expansion Plans in accordance with the foregoing provisions of this Section, Landlord shall state specifically the reasons for such disapproval, and Tenant shall cause its architects to promptly make any changes in the Proposed Expansion Plans reasonably required by Landlord. The Proposed Expansion Plans, as finally approved by Landlord, are referred to herein as the “Expansion Plans”. All work described in the Expansion Plans is referred to herein as the “Expansion Space Improvements”.
(e) In the event that Tenant exercises the Expansion Option in accordance with this Section, the term of this Lease as it relates to Expansion Space shall commence on the earlier of; (i) Tenant’s occupancy of all or any portion of the Expansion Space for the conduct of Tenant’s business, and (ii) one hundred eighty (x180) in days after the case delivery of an Increasing Lender, the Borrower Exercise Notice (the “Expansion Space Commencement Date”) and such Increasing Lender execute an agreement substantially in shall expire coterminous with the form Expiration Date of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereofLease. Notwithstanding the foregoing, no increase in if the Revolving Credit Commitments (Expansion Space Commencement Date has not occurred because of the holding over or in the Revolving Credit Commitment retention of possession of any Lender) tenant or occupant, or for any other reason, Landlord shall become effective under this paragraph unlessnot be subject to any liability to Tenant, (i) on but, in any event, the proposed date of the effectiveness of such increase, (A) the conditions 180-day period set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by not commence until the Expansion Space is delivered to the Tenant.
(f) In the event that Tenant exercises the Expansion Option in accordance with this Section, Landlord and Tenant shall, within forty-five (45) days thereafter, execute an amendment to this Lease memorializing Tenant’s lease of the Expansion Space under the terms set forth herein. Tenant shall commence payment of all accrued interest on Rent with respect to the amount prepaid andExpansion Space as of the Expansion Space Commencement Date.
(g) If Tenant fails to exercise its Expansion Option strictly in accordance with the provisions of this Section, in respect then Landlord shall have the right to lease such Expansion Space to any other party(-ies) with no further obligation to lease such space to Tenant pursuant to the terms of each LIBOR Loan, shall be subject this Section.
(h) In the event that Tenant have elected not to indemnification by the Borrower provide Landlord with an Expansion Exercise Notice pursuant to the provisions of Section 2.11 31 (a) and Landlord shall subsequently arrive at agreement on final terms of a proposed lease with the party interested in leasing such space in respect of which Landlord had given written notice to Tenant pursuant to the provisions of clause “i” of Section 31 (a), then Landlord shall give Tenant a Written Proposal setting forth such final terms of agreement and Tenant shall thereupon have the same rights to lease such space pursuant to the provisions of Section 33 as if the same were deemed payment occurs other than “First Refusal Space” thereunder. Notwithstanding the foregoing, in the event Tenant elects to lease the Expansion Space on the last day terms and conditions set forth in such Written Proposal in the event that after having elected not to provide Landlord with an Expansion Exercise Notice pursuant to the provisions of Section 31 (a) Tenant shall subsequently elect to lease the Expansion Space pursuant to the provisions of Section 33, then the terms and conditions of the related LIBOR Periods. Nothing contained in this Lease as they relate to the Expansion Space shall be governed by Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder33 herein.
Appears in 1 contract
Sources: Lease Agreement (Lenox Group Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 15,000,000 (or or, if less, the entire portion of Incremental Term Loans that remains available pursuant to this Section 2.21 as of such lesser amount as the Administrative Agent may agreedate) so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000200,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoD hereto or any other form approved by the Administrative Agent, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoE hereto or any other form approved by the Administrative Agent. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loans pursuant to this Section 2.152.21. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.21 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph Section 2.21 unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 Sections 6.12, 6.13 and 6.14 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.21. Nothing contained in this Section 2.15 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time, nor shall the Borrower have any obligation to approach any existing Lender to increase its Commitment hereunder or provide Incremental Term Loans.
Appears in 1 contract
Expansion Option. The At any time prior to the Maturity Date, the Borrower may shall have the right from time to time elect upon not less than ten (10) Business Days’ prior written notice to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by enter into one or more Lenders tranches of term loans (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderIncremental Term Loan”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) as of the date of each Augmenting Lendersuch request and on the date each such Incremental Term Loan takes effect, (A) the representations and warranties contained in Article V shall be subject to the approval of the Borrower, each Letter of Credit Issuer true and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender correct (other than the representations and warranties contained in Section 5.5 and Section 5.11(b)) and (B) no Unmatured Event of Default or Event of Default shall have occurred and be continuing, or would result from entering into such Incremental Term Loans, (ii) no Lender shall have any obligation to participate in such Incremental Term Loans, (iii) the Borrower shall only be permitted to request such Incremental Term Loans on three (3) separate occasions, (iv) each such request shall be in a minimum principal amount of $25,000,000 or any whole multiple of $10,000,000 in excess thereof and (v) in no event shall the aggregate outstanding principal amount of all Loans inclusive of such Incremental Term Loans at any time exceed $450,000,000; provided further that:
(a) Any participation in Incremental Term Loans by any Lender or Lenders participating who are at the time of such participation party to this Agreement (which Lender or Lenders shall consent to such participation in the increasetheir sole and absolute discretion) (an “Increasing Lender”) shall be required for any increase in Revolving Credit Commitments pursuant to accomplished as follows: (i) this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed Agreement will be amended by the Borrower, the Administrative Agent and such Increasing Lender(s) (but without any requirement that the relevant consent of any other Lenders be obtained) to reflect the Ratable Share of the Incremental Term Loans of each of the Increasing Lenders or Augmenting Lenders, and (ii) if requested, the Administrative Agent shall notify each Lender thereof. Notwithstanding Borrower will deliver new Note(s) to the foregoing, no increase in requesting Increasing Lender(s) reflecting the Revolving Credit Commitments (or in the Revolving Credit Commitment Ratable Shares of any Lendersuch Increasing Lender(s) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) Incremental Term Loans and (biii) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to each such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender shall execute and Augmenting Lender shall make available deliver to the Administrative Agent a Lender Addition and Acknowledgment Agreement (“Lender Addition and Acknowledgment Agreement”) substantially in the form of Exhibit E attached hereto; (b) Any participation in Incremental Term Loans by a new Lender (an “Augmenting Lender”) under this Agreement shall be accomplished as follows: (i) such amounts in immediately available funds as Augmenting Lender shall be subject to the consent of the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other LendersBorrower, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loanswhich consent shall not be unreasonably withheld, and (ii) the Borrower shall this Agreement will be deemed amended pursuant to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments an Incremental Term Loan Amendment (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered defined below) by the Borrower, in accordance with the requirements Administrative Agent and such Augmenting Lender (but without any requirement that the consent of Section 2.9). The deemed payments made pursuant any other Lenders be obtained) to clause reflect the addition of such Augmenting Lender as a Lender hereunder, (iiiii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by if requested the Borrower pursuant will deliver a Note to such Augmenting Lender and (iv) the Borrower and each such Augmenting Lender shall execute and deliver to the provisions of Section 2.11 if Administrative Agent, for its acceptance and recording in the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to beRegister, a commitment on Lender Addition and Acknowledgment Agreement substantially in the part form of any Lender to increase its Revolving Credit Commitment hereunderExhibit E attached hereto.
Appears in 1 contract
Sources: Term Loan Agreement
Expansion Option. (i) The Borrower may from time to time elect to increase the Aggregate Revolving Credit Commitments Loan Commitment or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum amounts of $50,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases in the Aggregate Revolving Loan Commitment and all such Incremental Term Loans does not exceed $50,000,000300,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more existing Lenders (each existing Lender so agreeing to an increase in its Revolving Credit Loan Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Loan Commitments, or provide new to participate in such Incremental Term Loans, or extend Revolving Credit Loan Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and, in the case of an increase to the Aggregate Revolving Loan Commitments, JPMorgan in its capacity as an Issuing Bank (which consent shall not be unreasonably withheld or delayed), and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoF-1 hereto (each, an “Increasing Lender Supplement”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoF-2 hereto (each, an “Augmenting Lender Supplement”). No consent of any Lender (other than the Lenders participating in the increaseincrease to the Aggregate Revolving Loan Commitment or any Incremental Term Loan) shall be required for any increase in Revolving Credit Loan Commitments or Incremental Term Loan pursuant to this Section 2.152.5(B)(i). Increases in and new Revolving Credit Loan Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.5(B)(i) shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Aggregate Revolving Credit Commitments Loan Commitment (or in the Revolving Credit Loan Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, :
(i1) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A1) the conditions set forth in paragraphs (ai) and (bii) of Section 6.2 5.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B2) the Borrower shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 7.4 as if (x) in the case of any Incremental Term Loan, such Incremental Term Loans had been outstanding on the last day of the most recent fiscal quarter for which financial statements are available for testing compliance therewith or (y) in the case of any increased Revolving Loan Commitments, all Revolving Loans available under the Aggregate Revolving Loan Commitment, including any such increased Revolving Loan Commitments, had been outstanding on the last day of the most recent fiscal quarter for which financial statements are available for testing compliance therewith, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and
(ii2) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date pursuant to Section 5.1 as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. increase (including, without limitation, opinions of counsel for the Borrower and the Subsidiary Guarantors in form and substance reasonably satisfactory to the Administrative Agent).
(ii) On the effective date of any increase in the Revolving Credit CommitmentsLoan Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its such Lender’s Pro Rata Share of Revolving Credit Commitment Percentage of Availability at such outstanding Revolving Credit Loanstime, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Loan Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice Borrowing/Election Notice delivered by the Borrower, Borrower in accordance with the requirements of Section 2.92.7). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Rate Loan, shall be subject to indemnification by the Borrower applicable Borrowers pursuant to the provisions of Section 2.11 4.4 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods.
(iii) Any tranche of Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Termination Date, (c) shall not have a shorter weighted average life to maturity than the Revolving Loans, and (d) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Termination Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or an amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.5(B). Nothing contained in this Section 2.15 2.5(B) shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Loan Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Revolving Credit Agreement (Energizer Holdings Inc)
Expansion Option. The Borrower Borrowers may from time to time after the Closing Date elect to increase the Revolving Credit Commitments or any Extended Revolving Commitments or enter into one or more new Classes of Revolving Commitments (“Increased Commitments”) or enter into one or more tranches of term loans (each, an “Incremental Term Loan”), in minimum increments each case in an aggregate principal amount of not less than $25,000,000 (or such lesser amount as may be reasonably agreed by the Administrative Agent may agreeAgent) so long as, after giving effect thereto, the aggregate amount of all such increases Increased Commitments and all such Incremental Term Loans (other than Refinancing Term Loans) established following the Closing Date does not exceed the sum of (x) $50,000,000360,000,000 less the aggregate principal amount of Indebtedness incurred under Section 6.01(r) and Section 6.01(w) in reliance on the “Unrestricted Incremental Amount”, plus (y) the amount of any voluntary prepayments of the Tranche A Term Loans and reductions in the amount of the Revolving Commitments, in each case, to the extent not funded with long term Indebtedness (this clause (y) together with clause (x), the “Unrestricted Incremental Amount”); provided that during the Restricted Period, the Borrowers shall not, in reliance on the “Unrestricted Incremental Amount”, establish (i) any Increased Commitments or any Incremental Term Loans under this Section 2.19(a) or (ii) any Permitted Debt Securities under Section 6.01(r) and Section 6.01(w) that are secured by Liens ranking pari passu with the Liens securing the Obligations, plus (z) an amount so long as, in the case of this clause (z), at the time of incurrence thereof, on a Pro Forma Basis (assuming all Increased Commitments were fully drawn and excluding the cash proceeds of such Incremental Term Loans and Increased Commitments from cash and Cash Equivalents), but excluding from such calculation any amounts incurred substantially concurrently in reliance on the Unrestricted Incremental Amount, the Consolidated Secured Leverage Ratio would be less than or equal to 1.50 to 1.0 as of the last day of the most recent fiscal quarter of the Parent Entity for which financial statements have been delivered pursuant to Section 5.01(a) or (b) (this clause (z), the “Ratio Incremental Amount”) ((the aggregate amount under clauses (x), (y) and (z), the “Incremental Basket Amount”). The Borrower Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment or Extended Revolving Commitment, or to enter into one or more new Classes of Revolving Commitments, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitment or Extended Revolving Commitment, or to enter into one or more new Classes of Revolving Commitments, or provide new to participate in such Incremental Term Loan, or extend Revolving Credit Commitments or Extended Revolving Commitments, as the case may be; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower Agent and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the Borrower Agent, to effect the provisions of this Section 2.152.19. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by Parent, the applicable Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Extended Revolving Credit Commitment of any Lender) Commitments or Incremental Term Loan shall become effective be permitted under this paragraph unless, (i) unless on the proposed date of the effectiveness of such increaseincrease in the Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.03 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Agent; provided that if the proceeds of any Incremental Term Loans are being used to finance an acquisition or other permitted Investment, (x) the reference in Section 4.03(a) to the accuracy of the representations and warranties shall refer to the accuracy of the representations and warranties contained in Sections 3.01 with respect to the Loan Parties (limited to the first sentence thereof), 3.02, 3.03(b)(ii), 3.08, 3.10, 3.13, 3.14 and 3.15 and (By) the Borrower Section 4.03(b) shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as apply solely to the organizational power and authority Specified Events of the Borrower to borrow hereunder after giving effect to such increaseDefault. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or Extended Revolving Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, if, on the date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be deemed prepaid to have repaid the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and reborrowed Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Credit Loans as owing to each Lender with a Revolving Commitment is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans. The Administrative Agent and the date of any increase Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Commitments (with such reborrowing transactions effected pursuant to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9)immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.15 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing The terms of any Incremental Term Loans shall be as set forth in the amendment to this Agreement providing for such Incremental Term Loans; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Term Loan A Maturity Date, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Tranche A Term Loans, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Tranche A Term Loans in any optional or mandatory prepayment hereunder, (iv) the provisions with respect to payment of interest, prepayments, original issue discount and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans; and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (iv) above and other than pricing, interest rate margins, rate floors, currency (which may be an Alternative Currency), discounts, premiums, fees, and optional prepayment terms and provisions, all of which shall be determined by the Borrower Agent and the Lenders providing such Incremental Term Loans) shall be, in the aggregate not materially more restrictive than the terms of this Agreement as determined in good faith by the Borrower Agent, except for covenants or other provisions applicable only to periods after the then Term Loan A Maturity Date at the time such Indebtedness is incurred or added to this Agreement for the benefit of the Lenders hereunder (it being understood that no consent shall be required by Lenders for terms or conditions that are more restrictive than this Agreement if such terms or conditions are added to this Agreement); provided further that the requirements set forth in the foregoing clauses (i) and (ii) shall not apply to any Indebtedness consisting of a customary bridge facility so long as such bridge facility automatically converts into long-term Indebtedness that satisfies such clauses (i) and (ii). The terms of any Increased Commitments shall be as set forth in the amendment to this Agreement providing for such Increased Commitments; provided that (i) the maturity date of any Increased Commitments shall be no earlier than the Revolving Credit Maturity Date and such Increased Commitments shall require no scheduled amortization or mandatory commitment reduction prior to the Revolving Credit Maturity Date, (ii) the provisions with respect to payment of interest and fees shall be as set forth in the amendment providing for such Increased Commitments; and (iii) all other terms applicable to such Increased Commitments (other than provisions specified in clauses (i) and (ii) above and other than pricing, interest rate margins, rate floors, currency (which may be an Alternative Currency) and fees) shall be, in the aggregate, not materially more restrictive than the terms of this Agreement as determined in good faith by the Borrower Agent, except for covenants or other provisions applicable only to periods after the then Revolving Credit Maturity Date at the time such Indebtedness is incurred or added to this Agreement for the benefit of the Lenders hereunder (it being understood that no consent shall be required by Lenders for terms or conditions that are more restrictive than this Agreement if such terms or conditions are added to this Agreement). This Section 2.19 shall override any provisions in Section 9.02 to the contrary. If, on the effective date of any Increased Commitments, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the relevant Increasing Lenders or Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share of all then outstanding Revolving Loans. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence and the deemed payments made pursuant the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrowers, jointly and severally, pursuant to the provisions of Section 2.15 shall constitute, or otherwise be if the deemed to be, a commitment payment occurs other than on the part last day of any Lender to increase its Revolving Credit Commitment hereunderthe related Interest Periods.
Appears in 1 contract
Expansion Option. The Administrative Borrower may may, from time to time time, elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000100,000,000. The Borrower Borrowers may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an a “Augmenting Joining Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide new extend Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Joining Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Administrative Borrower and the Administrative Agent (such approval not to be unreasonably withheld) and (ii) (x) in the case of an Increasing Lender, the Administrative Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G B hereto, and (y) in the case of an Augmenting a Joining Lender, the Administrative Borrower and such Augmenting Joining Lender execute an agreement substantially in the form of Exhibit H C hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Administrative Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Joining Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph Section 2.20 unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (aSection 4.02(a) and (bSection 4.02(b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower Borrowers shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.12 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments being made, (i) each relevant Increasing Lender and Augmenting Joining Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Administrative Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderhereunder at any time. Any documentation establishing an increase in Revolving Commitments pursuant to this Section 2.20, may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Administrative Borrower, to effect the provisions of this Section 2.20.
Appears in 1 contract
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a pro forma basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be subject to representations and warranties, covenants, events of default and other terms substantially identical to (and in any event no more favorable to the Incremental Term Loans than) those applicable to the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Dhi Group, Inc.)
Expansion Option. The Borrower may from time Subject to time elect the provisions of this Section 2, and provided an Event of Default is not in existence, Tenant shall have an option to increase expand the Revolving Credit Commitments in minimum increments of $25,000,000 Premises to include Available Expansion Space (or such lesser amount as the Administrative Agent may agree) “Expansion Option”). If Tenant desires to so long asexpand the Premises, after giving effect thereto, Tenant shall give Landlord a Notice (the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing LenderExpansion Notice”), or by one or more new bankswhich Expansion Notice shall set forth the number of usable square feet Tenant desires to add to the Premises. Within 30 days after Landlord’s receipt of the Expansion Notice, financial institutions or other entities Landlord shall determine if there is Available Space for lease located on (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lenderi) the first floor of the Building (including any Tenant occupied Temporary Expansion Space), which agree to increase their existing Revolving Credit Commitments(ii) multi-tenant floors of the Building, or provide new Revolving Credit Commitments(iii) the second floor of the Building ((i), (ii) and (iii) are collectively referred to as the case may be; provided “Available Expansion Space”) and deliver Notice (“Available Expansion Space Notice”) to Tenant describing the Available Expansion Space, if any. Tenant acknowledges and agrees that (i) each Augmenting Lenderin connection with Landlord’s determination of Available Expansion Space, priority will be given to, and Tenant shall be subject required to lease the approval Available Expansion Space, if at all, in the following sequence: (a) Available Expansion Space located on the first floor of the BorrowerBuilding (including any Tenant-occupied Temporary Expansion Space), each Letter (b) Available Expansion Space located on multi-tenant floors of Credit Issuer the Building, and (c) Available Expansion Space located on the Administrative Agent and second floor of the Building, (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoTenant will be required to convert any Temporary Expansion Space it is then leasing to Available Expansion Space before leasing any other Available Expansion Space, and (yiii) Landlord shall have the right, in its sole discretion, to remove the space on the second floor of the Building from the Available Expansion Space. If Tenant wishes to exercise its Expansion Option with respect to the Available Expansion Space described in the case Available Expansion Space Notice, then within 10 business days after Landlord’s delivery of an Augmenting Lenderthe Available Expansion Space Notice to Tenant, Tenant shall deliver Notice (the Borrower and such Augmenting Lender execute an agreement substantially in the form “Exercise Notice”) to Landlord of Exhibit H heretoTenant’s exercise of Expansion Option. No consent of any Lender (other than the Lenders participating in the increase) Available Expansion Space shall be required for any increase leased to Tenant in Revolving Credit Commitments its then-current “As-Is” condition and upon economic terms and conditions that are consistent with the economic terms and conditions applicable to the initial Premises, including monthly Base Rent charged per rentable square foot escalated at a rate of 3% per annum, and Additional Rent pursuant to this Section 2.15Article 2 of the Lease. Increases If Tenant does not give the Exercise Notice to Landlord within 10 business days after Landlord’s delivery of the Available Expansion Space Notice to Tenant, then Landlord shall be free to negotiate and new Revolving Credit Commitments created pursuant enter into a lease for the Available Expansion Space or applicable portion thereof to this Section 2.15 anyone to whom Landlord desires and Tenant shall become effective have no further right hereunder with respect to the subject Available Expansion Space. If Tenant gives Landlord an Exercise Notice, Landlord and Tenant shall then promptly amend the Lease to add such Available Expansion Space to the Premises on the date agreed by the Borrower, the Administrative Agent terms and the relevant Increasing Lenders or Augmenting Lendersconditions described above and to adjust Tenant’s Share. The Expansion Option hereunder is personal to Original Tenant, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoingmay not be Transferred and may be exercised only if Original Tenant is in possession of, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unlessand occupies, (i) at least 37,930 rentable square feet on the proposed date first floor of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 Building without sublease or assignment to any other person or entity. The Expansion Option shall be satisfied or waived by subordinate to the Required Lenders and rights granted to other tenants prior to the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer full execution of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increaseLease. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.Addendum Empire CenterPoint.360
Appears in 1 contract
Sources: Lease Agreement (Point.360)
Expansion Option. The Borrower (A) Subject to the terms and conditions of this Section 3.3, Tenant shall have the right to add the entirety of the third (3rd) floor of the Office Building (the “Third Floor”), which Landlord and Tenant conclusively agree contains 33,993 square feet of Rentable Floor Area (the “Third Floor Option Space”) to the Premises (the “Expansion Option”). If, prior to exercise of the Expansion Option, Tenant has leased any portion of the Third Floor pursuant to the Right of First Offer set forth in Section 3.4, then the Expansion Option shall apply to, and the Third Floor Option Space shall mean, the entirety of the Third Floor other than the portion leased by Tenant pursuant to the Right of First Offer. To exercise the Expansion Option, Tenant must provide written notice of its exercise to Landlord on or before the fourth (4th) anniversary of the Commencement Date.
(B) Tenant may not exercise the Expansion Option unless each of the following conditions (the “Expansion Conditions”) is satisfied or waived by Landlord in writing (i) at the time of Tenant’s exercise of its option, there exists no continuing monetary or material non-monetary Event of Default (as hereinafter defined), (ii) at the time the Term commences with respect to the expansion space, there exists no continuing Event of Default pursuant to subsections (f) through (k) of Section 15.1, (iii) at the time of Tenant’s exercise its option, this Lease is in full force and effect, and (iv) at the time of Tenant’s exercise of its option, Tenant has not assigned this Lease or sublet more than twenty five percent (25%) of the Rentable Floor Area of the Premises (except for subleases pursuant to Permitted Transfers under Section 12.2 hereof). If Tenant validly exercises the Expansion Option and each of the Expansion Conditions is satisfied, then promptly after the fifth (5th) anniversary of the Fourth Floor Rent Commencement Date (the “Third Floor Commencement Date”), Landlord and Tenant shall execute and deliver an instrument to confirm Tenant’s exercise of the Expansion Option, but the failure of Tenant or Landlord to execute and deliver such instrument shall not affect the validity of Tenant’s exercise of the Expansion Option.
(C) If Tenant validly exercises the Expansion Option, then Landlord shall deliver the Third Floor Option Space to Tenant in its “as-is” condition as of the Third Floor Commencement Date. Effective as of the Third Floor Commencement Date, the Rentable Floor Area of the Premises shall be increased to include the Rentable Floor Area of the Third Floor Option Space, the Annual Fixed Rent shall be increased proportionately to account for the addition of the square footage of the Third Floor Option Space to the Premises (such increase shall be equal to the product of the Rate per Square Foot of Rentable Floor Area applicable to the Premises from time to time elect to increase time, multiplied by the Revolving Credit Commitments number of square feet of Rentable Floor Area in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”Third Floor Option Space), or by one or more new banksand the Third Floor Option Space shall be added to the Premises on all of the same terms and conditions of this Lease, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided except that (i) each Augmenting Lender, shall be subject the Term of this Lease with respect to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) Third Floor Option Space shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective commence on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit LoansThird Floor Commencement Date, and (ii) the Borrower tenant improvement allowance with respect to the Third Floor shall be deemed equal to have repaid the product of Forty One and reborrowed all outstanding Revolving Credit Loans as 90/100 Dollars ($41.90) and the Rentable Floor Area of the date Third Floor Option Space. Such tenant improvement allowance shall be applied solely to the hard and soft costs of any increase improvements made to the Third Floor Option Space to ready it for Tenant’s occupancy thereof, and Tenant may not use more than fifteen percent (15%) of such tenant improvement allowance for, in the Revolving Credit Commitments aggregate, fees for construction management, architectural and engineering services, other consultants providing services directly related to the design or construction of Landlord’s Work, and/or any other Soft Costs (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified as defined in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9Exhibit B-1). The deemed payments made pursuant disbursement of such tenant improvement allowance will be subject to clause reasonable terms and conditions required by Landlord.
(iiD) If Tenant validly exercises its Expansion Option and thereafter, the then occupant of the Third Floor Option Space wrongfully fails to deliver possession of such premises at the time when its tenancy is scheduled to expire, then Landlord shall use reasonable efforts and due diligence to evict such occupant from the Third Floor Option Space and to recover from such occupant any Third Floor Option Space Hold-Over Premium. In such event, the commencement of the term of Tenant’s occupancy and lease of the applicable Third Floor Option Space shall be deferred until possession of the Third Floor Option Space is delivered to Tenant. The failure of the then occupant of such premises to so vacate shall not constitute a default or breach by Landlord and shall not give Tenant any right to revoke or cancel its exercise of the Expansion Option other than as expressly set forth in this Section 3.3(D), to terminate this Lease or to deduct from, offset against or withhold Annual Fixed Rent or Additional Rent (or any portions thereof); provided, however, that Tenant shall have the right to require Landlord to pay to Tenant one hundred percent (100%) of the immediately preceding sentence net amount (i.e. net of the costs and expenses, including, attorneys’ fees, incurred by Landlord in obtaining possession of the Third Floor Option Space and the Third Floor Option Space Hold-Over Premium) of any Third Floor Option Space Hold-Over Premium received by Landlord from such hold-over occupant, when and if Landlord receives any such payment. For the purposes hereof, the term “Third Floor Option Space Hold-Over Premium” shall be accompanied by payment of all accrued interest on defined as the amount prepaid and, (if any) that a hold-over occupant of any portion of the Third-Floor Option Space is required to pay to Landlord in respect of each LIBOR Loanits hold-over in the premises (whether characterized as rent, damages, or use and occupation) in excess of the amount of fixed rent and other charges that the tenant under whom such occupant claims would have been required to pay to Landlord had the term of such tenant’s lease been extended throughout the period of such hold-over at the same rental rate as such tenant was required to pay during the last month of its tenancy. In the event that such holding over continues for twelve (12) months, Tenant shall have the right, at any time thereafter and prior to delivery of the Third Floor Option Space to Tenant, to rescind Tenant’s exercise of its Expansion Option, whereupon Tenant’s lease of the Third Floor Option Space shall be subject null and void.
(E) Time is of the essence with respect to indemnification by the Borrower respective rights and obligations of Landlord and Tenant pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder3.3.
Appears in 1 contract
Sources: Lease Agreement (Rapid7, Inc.)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed the sum of (a) $50,000,000350,000,000 plus (b) additional amounts, so long as in the case of this clause (b), after giving effect on a Pro Forma Basis to the increase in the Revolving Commitments and/or the entrance into a tranche of Incremental Term Loans, the Total Net Leverage Ratio is no greater than 3.25 to 1.00 (which calculation shall assume that all such Indebtedness is fully drawn). The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoC hereto or such other form as may be agreed to among the Borrower, such Increasing Lender and the Administrative Agent, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoD hereto or such other form as may be agreed to among the Borrower, such Augmenting Lender and the Administrative Agent. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant contained in Section 9.3 Financial Performance Covenants and (ii) the Administrative Agent shall have received documents and opinions substantially consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase; provided that, with respect to any Incremental Term Loans incurred for the primary purpose of financing a Limited Conditionality Acquisition (“Acquisition-Related Incremental Term Loans”), clause (i)(A) of this sentence shall be deemed to have been satisfied so long as (1) as of the date of effectiveness of the related Limited Conditionality Acquisition Agreement, no Default is in existence or would result from entry into such documentation, (2) as of the date of the borrowing of such Acquisition-Related Incremental Term Loans, no Event of Default under clause (b), (c), (h) or (i) of Article VII is in existence immediately before or after giving effect (including on a Pro Forma Basis) to such borrowing and to any concurrent transactions and any substantially concurrent use of proceeds thereof, (3) the representations and warranties set forth in Article III shall be true and correct in all material respects (or in all respects if qualified by materiality) as of the date of effectiveness of the applicable Limited Conditionality Acquisition Agreement and (4) as of the date of the borrowing of such Acquisition-Related Incremental Term Loans, customary “Sungard” representations and warranties (with such representations and warranties to be reasonably determined by the Administrative Agent and the Lenders providing such Acquisition-Related Incremental Term Loans) shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and after giving effect to, the incurrence of such Acquisition-Related Incremental Term Loans. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans (but may have amortization prior to such date) and (c) shall have terms as agreed between the Borrower and the Lenders providing such Incremental Term Loans and reasonably acceptable to the Administrative Agent; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the latest Maturity Date in effect on the date of incurrence of such Incremental Term Loans and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000300,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.21. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.21 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.07 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Restatement Effective Date as to the organizational corporate power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.21. Nothing contained in this Section 2.15 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Ametek Inc/)
Expansion Option. (a) The Borrower may from time to time elect to increase the Revolving Credit Commitments upon notice to the Administrative Agent (which shall promptly notify the Lenders) in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 50,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed an amount equal to (x) $50,000,000200,000,000 minus (y) the aggregate principal amount of term loans funded in reliance on Section 6.01(m). At the time of sending such notice, the Borrower (in consultation with the Administrative Agent) shall specify the time period within which each Lender is requested to respond (which shall in no event be less than five Business Days from the date of delivery of such notice to the Lenders).
(b) Each Lender shall notify the Administrative Agent within such time period whether or not it agrees to increase its Commitment and, if so, whether by an amount equal to, greater than, or less than its Applicable Percentage of such requested increase. Any Lender not responding within such time period shall be deemed to have declined to increase its Commitment.
(c) The Administrative Agent shall notify the Borrower and each Lender of the Lenders’ responses to each request made hereunder (each Lender so agreeing to an increase in its Commitment, an “Increasing Lender”). To achieve the full amount of a requested increase the Borrower may arrange for any such increase to be provided by one or more the Increasing Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by as well as one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent Agent, such approvals not to be unreasonably withheld or delayed and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoB-1 hereto or other agreement or amendment to this Agreement in form satisfactory to the Administrative Agent, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoB-2 hereto or other agreement or amendment to this Agreement in form satisfactory to the Administrative Agent. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.04. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.04 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. .
(d) Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.04 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderhereunder at any time.
Appears in 1 contract
Sources: Credit Agreement (Dean Foods Co)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of incremental term loans (each an “Incremental Term Loan”), in each case in minimum increments of U.S. $25,000,000 (or such lesser amount as the Administrative Agent may agree) 25,000,000, so long as, after giving effect thereto, (a) the Senior Secured Leverage Ratio (on a Pro Forma Basis) shall not exceed 2.50 to 1.00 or (b) the aggregate amount of all such increases and Incremental Term Loans does not exceed an amount equal to U.S. $50,000,000350,000,000 minus the aggregate outstanding principal amount of all Permitted Term Debt. The Borrower may arrange for any such increase or Incremental Term Loan to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit CommitmentCommitment or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, extend Revolving Commitments or provide new Revolving Credit Commitmentsparticipate in such Incremental Term Loans, as the case may be; provided provided, that (i) each Augmenting Lender, shall be subject to the approval of the BorrowerBorrower and, the Administrative Agent, and, in the case of any increase in the Revolving Commitments, each Letter of Credit Issuer Issuing Bank and the Administrative Agent Swingline Lender, each such consent not to be unreasonably withheld; provided, that no Ineligible Institution may be an Augmenting Lender and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or any Incremental Term Loans pursuant to this Section 2.152.20. Increases and Increases, new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all of its outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR EurodollarEurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Revolving Commitments added or increased hereby and Revolving Loans made in connection therewith shall be subject to the same terms and conditions (including, without limitation, payment terms, pricing, fees, maturity dates, and collateral requirements) as all other Revolving Loans and Revolving Commitments hereunder. In no event shall the fees, interest rates and other compensation offered or paid in respect of additional or increased Revolving Commitments under this Section 2.20 have higher rates, fees or compensation that amounts paid and payable to the then existing Revolving Lenders in respect of their Revolving Commitments and Revolving Loans. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans and the initial Term Loans, (b) shall not mature earlier than the Term B Loan Maturity Date (but may have amortization prior to such date) and shall not have a shorter Weighted Average Life to Maturity than, the Term B Loans and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans and the initial Term Loans; provided, that:
(i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Term B Loan Maturity Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Term B Loan Maturity Date; and
(ii) the applicable interest rate margins and (subject to the foregoing clause (b)) amortization schedule applicable to any Incremental Term Loan shall be determined by the Borrower and the Lenders thereunder; provided, that in the event that the applicable interest rate margins for any Incremental Term Loan is higher than the Applicable Margin for the Term B Loans by more than 50 basis points, then the Applicable Margin for the Term B Loans shall be increased to the extent necessary so that such Applicable Margin is equal to the applicable interest rate margins for such Incremental Term Loan minus 50 basis points; provided further, that, in determining the applicable interest rate margins for the Incremental Term Loan and the Term B Loans:
(A) original issue discount (“OID”) or upfront fees (which shall be deemed to constitute like amounts of OID) payable by the Borrower to the Lenders under the Term B Loans or any Incremental Term Loan in the initial primary syndication thereof shall be included (with OID being equated to interest based on assumed four-year life to maturity);
(B) customary arrangement or commitment fees payable to the Joint Lead Arrangers (or their Affiliates) in connection with the Term B Loans or to one or more arrangers (or their Affiliates) of any Incremental Term Loan shall be excluded; and
(C) if the Incremental Term Loan includes an interest rate floor greater than the interest rate floor applicable to the Term B Loans, such increased amount shall be equated to the applicable interest rate margin for purposes of determining whether an increase to the Applicable Margin for the Term B Loans shall be required, to the extent an increase in the interest rate floor for the Term B Loan would cause an increase in the interest rate then in effect thereunder, and in such case the interest rate floor (but not the Applicable Margin) applicable to the Term B Loan shall be increased by such amount. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time. In connection with any increase of the Revolving Commitments or Incremental Term Loans pursuant to this Section 2.20, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in a minimum increments amount of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases the Commitments does not exceed $50,000,000400,000,000. The Borrower may arrange for any Upon the Borrower's request, such increase to may be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “"Increasing Lender”"), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “"Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender"), which agree selected by the Arrangers, in consultation with the Borrower, and willing to increase their existing Revolving Credit Commitments, or provide new Revolving Credit extend Commitments, as the case may be; , provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Agent and the Administrative Agent Issuing Banks and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 clause shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) ), shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) Sections 4.2.1 and (b) of Section 6.2 4.2.2 shall be satisfied or waived by Lenders holding more than 50% of the Required Lenders Commitments (inclusive of any increased or new Commitments under this Section 2.21) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s 's portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, Borrower in accordance with the requirements of Section 2.92.8). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 3.4 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 1 contract
Expansion Option. (i) The Borrower may from time to time after the Closing Date elect to increase the Aggregate Revolving Credit Commitments Loan Commitment (each, a “Revolving Loan Increase”) or increase the aggregate principal amount of any Class of Term Loans or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum amounts of $50,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases Revolving Loan Increases and such Incremental Term Loans (other than Incremental Term Loans in respect of Refinancing Term Loans) does not exceed (A) (i) an aggregate amount equal to the greater of (x) $50,000,000600,000,000 and (y) 100.0% of Consolidated EBITDA for the period of four consecutive fiscal quarters of the Borrower most recently ended on or prior to such date for which Financial Statements have been delivered plus (ii) the aggregate principal amount of any prepayments of Term Loans (in the case of Term Loans consisting of Incremental Term Loans (or any refinancing thereof) solely to the extent incurred in reliance on this clause (A)) made pursuant to Section 2.04(a) following the Closing Date to the extent not funded with the proceeds of Indebtedness for borrowed money plus (B) an additional amount, so long as, after giving effect to the incurrence of such additional amount (and assuming for such purposes that the entire amount of any such Revolving Loan Increase is fully funded), the pro forma Senior Secured Leverage Ratio does not exceed 3.00 to 1.00 (or, if such Indebtedness is incurred in connection with a Permitted Acquisition, the Senior Secured Leverage Ratio in effect immediately prior thereto); provided that, for purposes of this clause (B), net cash proceeds of Incremental Term Loans incurred at such time shall not be netted against the applicable amount of Consolidated First Lien Indebtedness for purposes of such calculation of the Senior Secured Leverage Ratio at such time plus (C) solely in connection with the redemption of the Existing 2027 Notes in accordance with the 2027 Notes Conditional Redemption Notice, an aggregate principal amount of $650,000,000 (the “2027 Notes Redemption Basket”); provided that (i) only Incremental Term Loans (and not a Revolving Loan Increase) shall be permitted by this clause (C) and (ii) such Incremental Term Loans shall be incurred in one Advance that shall occur no more than one (1) Business Day prior to such redemption of the Existing 2027 Notes; provided, further, that the aggregate principal amount of the sum of all (x) Revolving Loan Increases, taken as a whole, plus (y) Incremental Term Loans incurred in the form of “term A loans” (which shall mean a term loan facility with amortization (without giving effect to any increase made solely to make such Incremental Term Loans fungible with any Term Loans) greater than 1.0% per year prior to maturity or that mature prior to the Term Loan Maturity Date), taken as a whole, shall not exceed $300,000,000. The Borrower may arrange for any such increase Revolving Loan Increase or Incremental Term Loan to be provided by one or more existing Lenders (each existing Lender so agreeing to an increase in its Revolving Credit Loan Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit CommitmentsLoan Commitments or to participate in such Incremental Term Loans (it being agreed that any Lender approached to provide any such Revolving Loan Increase or Incremental Term Loans may elect or decline, in its sole discretion, to provide such Revolving Loan Increase or provide new Revolving Credit Commitments, as the case may beIncremental Term Loans); provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and, in the case of a Revolving Loan Increase, the Issuing Banks (which consent shall not be unreasonably withheld or delayed), and (ii) with respect to any Revolving Loan Increase, (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoE-1 hereto (each, an “Increasing Lender Supplement”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoE-2 hereto (each, an “Augmenting Lender Supplement”). No consent of any Lender (other than the Lenders participating in the increaseRevolving Loan Increase or Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments Loan Increase or Incremental Term Loans pursuant to this Section 2.152.05(b)(i), as applicable. Revolving Loan Increases and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.05(b)(i), shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Incremental Term Loans may be made hereunder pursuant to an amendment or an amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.05(b). Notwithstanding the foregoing, no increase in the Aggregate Revolving Credit Commitments Loan Commitment (or in the Revolving Credit Loan Commitment of any Lender) or Incremental Term Loans shall become effective under this paragraph unless, :
(i1) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (Ax) the conditions set forth in paragraphs (a) and (b) of Section 6.2 5.02 shall be satisfied or waived by the Required Lenders; provided that if the proceeds of such Incremental Term Loans are being used to finance a Limited Condition Acquisition, (i) the condition set forth in such paragraph (a) shall be satisfied or waived by the Required Lenders as of the date the definitive acquisition agreements for such Limited Condition Acquisition are entered into and (ii) the condition set forth in such paragraph (b) shall be limited to the accuracy of the Specified Representations, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (By) in the case of any incurrence utilizing the 2027 Notes Redemption Basket, substantially concurrently with the funding of such Incremental Term Loans, the Borrower shall be provide written evidence to the Administrative Agent of its having notified the trustee in compliance with respect of the covenant contained Existing 2027 Notes of the satisfaction of the conditions precedent to the redemption of the Existing 2027 Notes set forth in Section 9.3 the 2027 Notes Conditional Redemption Notice and the 2027 Notes Conditional Redemption Notice shall not have been rescinded, supplemented or otherwise modified; and
(ii2) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date pursuant to Sections 5.01 and 5.02 as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. increase (including, without limitation, opinions of counsel for the Borrower and the Subsidiary Guarantors in form and substance reasonably satisfactory to the Administrative Agent).
(ii) On the effective date of any increase in the Revolving Credit CommitmentsLoan Increase, (iA) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Revolving Lender’s portion of the outstanding Revolving Credit Loans of all the Revolving Lenders to equal its such Revolving Lender’s Pro Rata Share of Revolving Credit Commitment Percentage of Availability at such outstanding Revolving Credit Loans, time and (iiB) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Loan Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice Borrowing/Election Notice delivered by the Borrower, Borrower in accordance with the requirements of Section 2.92.07). The deemed payments made pursuant to clause (iiB) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Rate Term Benchmark Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 4.04 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 .
(iii) The terms and conditions of any Revolving Loan Increase and the Incremental Term Loans shall constitute, or otherwise be deemed to be, except as otherwise set forth herein or in the applicable Revolving Loan Increase or Incremental Term Loan Amendment, identical to those of the Revolving Loan Commitment and Term Loans, as applicable; provided that (A) if the All-in Yield for any Incremental Term Loans (other than Incremental Term Loans in respect of Refinancing Term Loans) exceeds the All-in Yield for the Term Loans by more than 50 basis points (the amount of such excess above 50 basis points being referred to herein as the “Term Yield Differential”), then the Applicable Margin for the Term Loans shall automatically be increased by the Term Yield Differential (plus, if elected by the Borrower in its sole discretion, an additional amount in order to make the Term Loans fungible with such Incremental Term Loans), effective upon the making of such Incremental Term Loans; provided that this clause (A) shall not be applicable to any Incremental Term Loan that (x) is incurred after the date that is twelve months following the Closing Date or (y) incurred in connection with a commitment on Change of Control or transformative acquisition not otherwise permitted under the part this Agreement (this clause (A) being referred to herein as the “MFN Provision”), (B) no Incremental Term Maturity Date shall be earlier than the Term Loan Maturity Date, (C) the Weighted Average Life to Maturity of any Lender Incremental Term Loans shall be no shorter than the remaining Weighted Average Life to increase its Maturity of the Term Loans, (D) the Incremental Term Loans will rank pari passu in right of payment and with respect to security with the Term Loans and none of the obligors or guarantors with respect thereto shall be a Person that is not a Loan Party, (E) the Incremental Term Loans may participate on a pro rata basis (or on a basis that is less than pro rata) in any mandatory prepayments of the Term Loans, but may not provide for mandatory prepayment requirements that are more favorable than those applicable to Term Loans, and (F) to the extent the terms of the Incremental Term Loans are inconsistent with the terms of the Term Loans (except as set forth in clauses (A), (B) and (C) above), (i) such terms shall be reasonably satisfactory to the Administrative Agent and (ii) to the extent such terms are more favorable to the Incremental Lenders than the terms hereof to the Term Lenders, the Borrower may elect to conform to such terms for the benefit of all of the Term Lenders pursuant to an amendment hereto subject solely to the reasonable satisfaction of the Administrative Agent. For the avoidance of doubt, all terms of any Revolving Credit Commitment hereunderLoan Increase (including the Applicable Margin thereon) shall be identical to the terms of the Revolving Facility.
Appears in 1 contract
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments Commitments, in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000. The Borrower Company may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Restatement Effective Date as to the organizational corporate power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Company (on its own behalf or on behalf of the applicable Borrower, ) in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall shall, in respect of each Eurocurrency Loan, be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, and shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, at any time.
Appears in 1 contract
Sources: Credit Agreement (Heidrick & Struggles International Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,00030,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide new Revolving Credit extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G D hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H E hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph Section 2.20 unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions opinion letters consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 1 contract
Sources: Credit Agreement (Ugi Corp /Pa/)
Expansion Option. The Borrower may from time (a) During the Term of this Lease, Tenant shall have the continuing option to time elect lease an addition or multiple additions on the Real Estate of similar quality and design (the “Expansion Space”) to increase the Revolving Credit Commitments Leased Premises of up to Two Hundred Thousand Seventy (200,070) square feet of Floor Area. Lease of the Expansion Space shall be on the same general terms and conditions specified in minimum increments this Lease for the original Leased Premises, other than for the adjustment of $25,000,000 Base Rent and the Term as set forth in this Section 6.7. To exercise this expansion option, Tenant shall give Landlord at least Three Hundred Sixty-Five/Sixty-Six (or such lesser amount 365/366) days, as applicable, written notice of the Administrative Agent may agree) intended date of possession of the Expansion Space (the “Expansion Space Option Notice”). This option shall be available to Tenant so long as, after giving effect thereto, as no uncured Event of Default is in existence at the aggregate amount time of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase the delivery of the Expansion Space Option Notice or the delivery date of the Expansion Space to be provided by one or more Lenders Tenant.
(each Lender so agreeing b) At the time the Expansion Space is delivered to an increase in its Revolving Credit Commitment, an Tenant (the “Increasing LenderExpansion Space Delivery Date”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, Expansion Space shall be subject deemed part of the Leased Premises and, if the then current Term is less than seven (7) years, the current Term will be extended from the remaining term thereof (the “Remaining Term”) for a period (the “Extended Period”) sufficient to create a seven (7) year then current Term. Each remaining Option Term, if any, will be adjusted to commence based on the Extended Period or the applicable anniversary thereof. Such adjustments will be reflected in an Expansion Space Notice to be executed by Landlord and Tenant within thirty (30) days following the Expansion Space Delivery Date.
(c) Base Rent for the original Leased Premises shall remain as specified in Section 1.7 above for the balance of the Remaining Term and shall be increased for the Extended Period by an amount equal to the approval product of the Borrower, each Letter of Credit Issuer annual Base Rent during the Remaining Term and the Administrative Agent and percentage increase, if any, of the Consumer Price Index (iithe “CPI”) since the commencement of the then current Lease Period; provided, however, that the CPI increase shall not exceed two percent (x2%) in per year. Base Rent for the case Expansion Space shall be computed on the basis of an Increasing Lendereight (8%) return to Landlord on the actual costs payable by Landlord for construction supplies and labor, architectural and engineering fees for the Borrower and such Increasing Lender execute an agreement substantially in balance of the form of Exhibit G hereto, and (y) in then current Term. Base Rent for the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of Leased Premises on any Lender (other than the Lenders participating in the increase) succeeding Option Period shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions determined as set forth in paragraphs Section 3.2, taking into account the full Leased Premises including the Expansion Space.
(ad) Landlord shall obtain at least three (3) construction bids on the Expansion Space, and (b) of Section 6.2 Tenant shall be satisfied or waived by have the Required Lenders right to approve the plans for the Expansion Space and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, bids accepted for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderconstruction thereof.
Appears in 1 contract
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments Commitments, in each case in an initial minimum amount of $50,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 1,000,000 in excess thereof, so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000500,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitments or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Increasing Lender and each Augmenting Lender, Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and each LC Bank and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G J hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H K hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.152.22. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.22 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 3.02 shall be satisfied or waived by the Required Lenders Lenders, each Increasing Lender and each Augmenting Lender and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance (on a pro forma basis) with the covenant contained in Section 9.3 Article VII and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.02). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 2.22 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderhereunder at any time. In connection with any increase of the Commitments pursuant to this Section 2.22, any Augmenting Lender becoming a party hereto shall (1) execute such documents and agreements as the Administrative Agent may reasonably request and (2) in the case of any Augmenting Lender that is organized under the laws of a jurisdiction outside of the United States of America, provide to the Administrative Agent and each LC Bank, its name, address, tax identification number and/or such other information as shall be necessary for the Administrative Agent and each LC Bank to comply with “know your customer” and anti-money laundering rules and regulations, including without limitation, the Patriot Act.
Appears in 1 contract
Expansion Option. (i) The Borrower may from time to time elect to increase the Aggregate Revolving Credit Commitments Loan Commitment or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum amounts of $50,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 so long as, after giving effect thereto, the aggregate amount of such increases in the Aggregate Revolving Loan Commitment and all such Incremental Term Loans does not exceed $50,000,000200,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more existing Lenders (each existing Lender so agreeing to an increase in its Revolving Credit Loan Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Loan Commitments, or provide new to participate in such Incremental Term Loans, or extend Revolving Credit Loan Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and, in the case of an increase to the Aggregate Revolving Loan Commitments, JPMorgan in its capacity as an Issuing Bank (which consent shall not be unreasonably withheld or delayed), and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoF-1 hereto (each, an “Increasing Lender Supplement”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H heretoF-2 hereto (each, an “Augmenting Lender Supplement”). No consent of any Lender (other than the Lenders participating in the increaseincrease to the Aggregate Revolving Loan Commitment or any Incremental Term Loan) shall be required for any increase in Revolving Credit Loan Commitments or Incremental Term Loan pursuant to this Section 2.152.5(B)(i). Increases in and new Revolving Credit Loan Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.5(B)(i) shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Aggregate Revolving Credit Commitments Loan Commitment (or in the Revolving Credit Loan Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, :
(i1) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A1) the conditions set forth in paragraphs (ai) and (bii) of Section 6.2 5.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B2) the Borrower shall be in compliance (on a pro forma basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 7.4 as if (x) in the case of any Incremental Term Loan, such Incremental Term Loans had been outstanding on the last day of the most recent fiscal quarter for which financial statements are available for testing compliance therewith or (y) in the case of any increased Revolving Loan Commitments, all Revolving Loans available under the Aggregate Revolving Loan Commitment, including any such increased Revolving Loan Commitments, had been outstanding on the last day of the most recent fiscal quarter for 30 which financial statements are available for testing compliance therewith, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower, and
(ii2) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date pursuant to Section 5.1 as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. increase (including, without limitation, opinions of counsel for the Borrower and the Subsidiary Guarantors in form and substance reasonably satisfactory to the Administrative Agent).
(ii) On the effective date of any increase in the Revolving Credit CommitmentsLoan Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its such Lender’s Pro Rata Share of Revolving Credit Commitment Percentage of Availability at such outstanding Revolving Credit Loanstime, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Loan Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice Borrowing/Election Notice delivered by the Borrower, Borrower in accordance with the requirements of Section 2.92.7). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Rate Loan, shall be subject to indemnification by the Borrower applicable Borrowers pursuant to the provisions of Section 2.11 4.4 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods.
(iii) Any tranche of Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Termination Date, (c) shall not have a shorter weighted average life to maturity than the Revolving Loans, and (d) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) the terms and conditions applicable to any tranche of Incremental Term Loans maturing after the Termination Date may provide for material additional or different financial or other covenants or prepayment requirements applicable only during periods after the Termination Date and (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or an amendment and restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.5(B). Nothing contained in this Section 2.15 2.5(B) shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Loan Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Revolving Credit Agreement (Energizer Holdings Inc)
Expansion Option. The Borrower may from time to time elect after the Closing Date and not less than thirty (30) days prior to the end of the Availability Period, at its sole cost, expense and effort, request any one or more of the Lenders having a Commitment to increase its Commitment Amount (the decision to increase the Revolving Credit Commitments Commitment Amount of a Lender to be within the sole and absolute discretion of such Lender), or request any other Eligible Assignee reasonably satisfactory to the Administrative Agent to increase its Commitment Amount, and request the Issuing Bank to provide a new Commitment (each such requested commitment an “Incremental Commitment”), by submitting to the 4932-7881-9418 v.6 46 Administrative Agent a Commitment Increase Supplement, substantially in the form of Exhibit 2.15, duly executed by the Borrower and each such Lender or other Eligible Assignee (each, an “Incremental Lender”). In each case, such Incremental Commitment shall be in a minimum amount of $25,000,000 and increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 in excess thereof so long as, after giving effect thereto, the aggregate amount of such increases does Aggregate Commitments do not exceed $50,000,0001,250,000,000. The Borrower may arrange Nothing in this Agreement shall be construed to obligate the Administrative Agent, Arrangers or any Lender to negotiate for (whether or not in good faith), solicit, provide, or consent to any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or Commitments. Each Incremental Commitment shall become effective on a date agreed by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) in the case of an Increasing Lendereach, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoa “Commitment Increase Date”), and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) which shall be required for in any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective case on or after the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders of satisfaction or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived waiver by the Required Lenders of the conditions precedent set forth in Section 4.03 and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Borrower. The Administrative Agent shall have received documents notify the Lenders and opinions consistent with those delivered the Borrower, on or before 1:00 p.m. on the effective date as to the organizational power and authority day following a Commitment Increase Date of the Borrower to borrow hereunder after giving effect to effectiveness of such increaseincrease in Commitments and shall record in the Register all applicable additional information in respect of such increase in Commitments. On the effective date Commitment Increase Date, each Incremental Lender participating in such Incremental Commitments shall be deemed to purchase and assume from each existing Lender having Loans and participations in Letters of any increase in the Revolving Credit Commitmentsoutstanding on such Commitment Increase Date, (i) each relevant Increasing Lender without recourse or warranty, an undivided interest and Augmenting Lender shall make available participation, to the Administrative Agent extent of such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit Lender’s Applicable Percentage of the other Lenders, as being required in order to cause, new Commitments (after giving effect to such increase in Commitments), in the aggregate outstanding Loans and participations in Letters of Credit, so as to ensure that, on the use of such amounts to make payments Commitment Increase Date after giving effect to such other Lendersincrease in Commitments, each Lender’s portion Lender is owed only its Applicable Percentage of the Loans and participations in Letters of Credit outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit on such Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunderIncrease Date.
Appears in 1 contract
Expansion Option. The Borrower Borrowers may from time to time elect to increase the Revolving Credit Commitments (but not, for the avoidance of doubt, the Swingline Commitment) in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000300,000,000. The Borrower Borrowers may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the BorrowerBorrowers, each Letter of Credit Issuer Issuer, the Swingline Lender and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Borrowers and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower Borrowers and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the BorrowerBorrowers, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease and immediately prior to giving effect to any such increase and the addition of any Augmenting Lenders to this Agreement, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the each Borrower and (B) the each Borrower shall be in compliance with the covenant covenants contained in Section 9.3 and Section 9.4 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the each Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9Borrowers). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR SOFR Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder. In connection with any increase in the Revolving Credit Commitment pursuant to this Section 2.15, the respective Sublimits and Maximum Sublimits of the Borrowers shall be increased by an equal aggregate amount as the Borrowers may direct by notice to the Administrative Agent, subject to the limitations set forth in Section 4.2. If there are Swingline Loans or Letters of Credit outstanding on the date of the effectiveness of the increase, the participations of the Lenders in such Swingline Loans or Letters of Credit, if any, will be automatically adjusted to reflect the Revolving Credit Commitment Percentages of all the Lenders after giving effect to any increase of the Revolving Credit Commitments in accordance with this Section 2.15.
Appears in 1 contract
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case, in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit CommitmentCommitment or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments and/or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increaseincrease or Incremental Term Loan. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Photronics Inc)
Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments (but not, for the avoidance of doubt, the Swingline Commitment) in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, after giving effect thereto, the aggregate amount of such increases does not exceed $50,000,000100,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Issuer, the Swingline Lender and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease and immediately prior to giving effect to any such increase and the addition of any Augmenting Lenders to this Agreement, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant covenants contained in Section 9.3 and Section 9.4 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder.
Appears in 1 contract
Expansion Option. The Borrower Company may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 20,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,000250,000,000. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or to participate in such Incremental Term Loans, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Responsible Officer of the Borrower Company and (B) the Borrower Company shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.10 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date Effective Date as to the organizational power and authority of the Borrower Borrowers to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds Same Day Funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, the Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the applicable Borrower, or the Company on behalf of the applicable Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan and each Alternative Currency Term Rate Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrowers, each Increasing Lender participating in such tranche, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.20. Nothing contained in this Section 2.15 2.20 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Sources: Credit Agreement (Bruker Corp)
Expansion Option. Sublessee shall have the right and option to expand the space which comprises the Subleased Premises and is subject to this Sublease for up to 10,000 rentable square feet of space. The Borrower may from foregoing expansion option shall be exercisable at any time to time elect to increase during the Revolving Credit Commitments in minimum increments Original Term of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long asSublease only by Sublessee and only by giving Sublessor written notice thereof, after giving effect thereto, which notice shall specify the aggregate amount of such increases does not exceed $50,000,000space (up to the maximum of 10,000 rentable square feet) (the "Expansion Space") and the proposed commencement date for the expansion option (which notice shall be given at least six (6) months in advance). The Borrower may arrange for any such increase Within thirty (30) days after the receipt of Sublessee's notice of exercise of the expansion option, Sublessor shall designate the location of the Expansion Space within the Building. Sublessor shall use its reasonable best efforts to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (other than the Lenders participating in the increase) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective provide contiguous space located on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increase, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, single floor for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit LoansExpansion Space, and (ii) make the Borrower Expansion Space available for Sublessee's occupancy on the commencement date proposed by the Sublessee in its notice of exercise of the expansion option, but in any event no later than twelve (12) months following receipt of such notice. Any costs incurred by Sublessor for relocation of tenants and/or reconfiguration of space in creating the Expansion Space shall be paid by Sublessee upon demand from Sublessor. As a condition precedent to the occupancy of the Expansion Space by the Sublessee, Sublessor and Sublessee shall execute a written amendment of this Sublease to effect the incorporation of the Expansion Space into the Subleased Premises, which amendment shall contain the terms and conditions of such occupancy as agreed to by the parties, including, without limitation, the term of the lease of the Expansion Space. In the event Sublessee shall commence occupancy of the Expansion Space under this Section 21.3 on or before May 1, 2004 the Base Rent per square foot rental rate shall be the same Base Rent per square foot charge paid by the Sublessee under Article 4.1 of this Sublease plus any other additional charges payable by the Sublessee under this Lease, and the other terms and conditions of the amendment to the Sublease. In the event Sublessee shall commence occupancy of the Expansion Space under this Section 21.3 after May 1, 2004, the Base Rent per square foot shall be negotiated by the parties hereto, and shall be commercial reasonable. In no event, however, shall the Base Rent for the Expansion Space be less than the Base Rent per square foot charge paid by the Sublessee under Article 4.1 of this Sublease.
4. A list of the final plans and specifications for the Base Building Work, as approved by the parties in the Confirmation, is attached hereto as Exhibit 2A, which list is subject to the deletions and modifications listed on Exhibit 9 hereto. A list of the existing plans and specifications for the Leasehold Improvement Work, as previously approved by the parties, is attached hereto as Exhibit 2, which list shall be subject to modification as provided in Section 5 below. Sublessor shall use diligent efforts to complete construction of the Base Building Work and the Leasehold Improvement Work on or before April 25, 2002. In the event Sublessor fails to achieve "Substantial Completion" (as defined in Section 2.5 of the Sublease) of the Base Building Work and the Leasehold Improvement Work on or before July 1, 2002, then Sublessee shall have the right, exercisable by notice to Sublessor given at any time while such failure persists, to terminate this Sublease; provided, however, if Sublessor fails to achieve Substantial Completion because of delays caused by the Sublessee, its agents, or employees ("Sublessee Delays"), Substantial Completion shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans occurred as of the date that Sublessor could reasonably have been expected to achieve Substantial Completion absent any Sublessee Delays. The construction deadline of any increase July 1, 2002 shall be extended one (1) day, up to a maximum of one hundred eighty (180) days, for each day of delay caused by (a) the occurrence of an event of "Force Majeure" as defined in the Revolving Credit Commitments (with such reborrowing to consist Section 2.4 of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 if the deemed payment occurs other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constituteSublease, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder(b) Sublessee Delays.
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Expansion Option. (a) The Borrower may from time to time after the Closing Date elect to increase the Revolving Credit Commitments or any Extended Revolving Commitments (“Increased Commitments”) in minimum increments an aggregate principal amount of not less than $25,000,000 10,000,000 (or such lesser amount as may be reasonably agreed by the Administrative Agent may agreeAgent) so long as, after giving effect thereto, the aggregate amount of all such increases Increased Commitments established following the Closing Date does not exceed $50,000,000150,000,000 (the “Incremental Basket Amount”). The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit CommitmentCommitment or Extended Revolving Commitment in its sole discretion, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, Commitment or provide new Extended Revolving Credit CommitmentsCommitment, as the case may be; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section 2.152.19. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Extended Revolving Credit Commitment of any Lender) Commitments shall become effective be permitted under this paragraph unless, (i) unless on the proposed date of the effectiveness of such increaseincrease in the Revolving Commitments or Extended Revolving Commitments, (Aw) the conditions representations and warranties of the Loan Parties set forth in paragraphs this Agreement and the other Loan Documents shall be true and correct in all material respects on and as of the date of the effectiveness of such increase (aexcept where any representation and warranty is expressly made as of a specific earlier date, such representation and warranty shall be true in all material respects as of any such earlier date; provided that during any Collateral/Covenant Suspension Period the representations and warranties set forth in Sections 3.04(b) and 3.06 shall not be required to be made), (x) at the time of and immediately after giving effect to such increase, no Event of Default shall have occurred and be continuing; (y) the Borrower shall be in compliance on a Pro Forma Basis with Section 6.09 as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b), assuming, for purposes of this clause (y) that the full amount of Section 6.2 shall be satisfied any such Increased Commitments has been drawn, whether or waived by the Required Lenders not so drawn and (z) the Administrative Agent shall have received a certificate certifying as to that effect compliance with the foregoing clause (w), (x) and (y), dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increaseBorrower. On the effective date of any increase in the Revolving Credit Commitments or Extended Revolving Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) if, on the Borrower date of such increase, there are any Revolving Loans outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be deemed prepaid to have repaid the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and reborrowed Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Credit Loans as owing to each Lender with a Revolving Commitment is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans. The Administrative Agent and the date of any increase Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Commitments (with such reborrowing transactions effected pursuant to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9)immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.15 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing Any Increased Commitments shall be on the exact same terms as the Revolving Commitments being increased thereby.
(b) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
(c) If, on the effective date of any Increased Commitments, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be prepaid to the extent necessary from the proceeds of additional Revolving Loans made hereunder by the relevant Increasing Lenders or Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Loans owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share of all then outstanding Revolving Loans. The Administrative Agent and the Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentence and the deemed payments made pursuant the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each Eurocurrency Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.15 shall constitute, or otherwise be if the deemed to be, a commitment payment occurs other than on the part last day of any Lender to increase its Revolving Credit Commitment hereunderthe related Interest Periods.
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Expansion Option. The Borrower may from time to time elect to increase the Revolving Credit Commitments or enter into one or more tranches of term loans (each an “Incremental Term Loan”), in each case in minimum increments of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 5,000,000 so long as, after giving effect thereto, the aggregate amount of such increases and all such Incremental Term Loans does not exceed $50,000,00025,000,000. The Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit to participate in such Incremental Term Loans, or extend Commitments, as the case may be; provided that (i) each Augmenting Lender, shall be subject to the approval of the Borrower, each Letter of Credit Issuer Borrower and the Administrative Agent Agent, which approvals shall not be unreasonably withheld, (ii) no Augmenting Lender shall be the Borrower or any Subsidiary or Affiliate of the Borrower and (iiiii) (x) in the case of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G C hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H D hereto. No consent of any Lender (other than the Lenders participating in the increaseincrease or any Incremental Term Loan) shall be required for any increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.152.20. Increases and new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.20 shall become effective on the date agreed by the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or tranche of Incremental Term Loans shall become effective under this paragraph unless, (i) on the proposed date of the effectiveness of such increaseincrease or Incremental Term Loans, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance (on a Pro Forma Basis reasonably acceptable to the Administrative Agent) with the covenant covenants contained in Section 9.3 6.11 and (ii) the Administrative Agent shall have received documents and opinions (including legal opinions) consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the case of any Incremental Term Loans, the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained The Incremental Term Loans (a) shall rank pari passu in right of payment with the Revolving Loans, (b) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (c) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided that (i) 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 (ii) the Incremental Term Loans may be priced differently than the Revolving Loans. Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Borrower, each Augmenting Lender participating in such tranche, if any, and the Administrative Agent. The Incremental Term Loan Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.15 2.20; provided that any such Incremental Term Loan Amendment shall constitute, require that any waivers or otherwise be deemed to be, a commitment on amendments of Section 4.02 (including the part waiver of any Lender to increase its Default that has the effect of waiving the conditions in Section 4.02) shall also require the written consent or approval of Lenders having Revolving Credit Commitment hereunderExposures and unused Commitments in respect of Revolving Loans representing more than 50% of the sum of the total Revolving Credit Exposures and unused Commitments in respect of Revolving Loans.
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Sources: Credit Agreement (Par Pharmaceutical Companies, Inc.)
Expansion Option. (a) The Borrower Company may from time to time time, but not more than five (5) times during the term of this Agreement, elect to increase the Revolving Credit Commitments or enter into one or more additional tranches of term loans (each, an “Incremental Term Loan”), in each case in a minimum increments amount of $25,000,000 (or such lesser amount as the Administrative Agent may agree) 10,000,000 and an integral multiple of $5,000,000 in excess thereof so long as, after giving effect thereto, the aggregate amount of such Revolving Commitment increases and all such Incremental Term Loans does not exceed $50,000,000150,000,000. For the avoidance of doubt, the parties acknowledge that the term “Incremental Term Loans” does not include the Original Term Loans or the Additional Term Loans. The Borrower Company may arrange for any such Revolving Commitment increase or Incremental Term Loan to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, or to participate in such Incremental Term Loans, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new to participate in such Incremental Term Loans, or extend Revolving Credit Commitments, as the case may be; provided provided, that (i) each Augmenting Lender, Lender shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and, except in the case of an Incremental Term Loan, the Swingline Lender and the Issuing Bank, which approvals shall not be unreasonably withheld or delayed and (ii) (xA) in the case of an Increasing Lender, the Borrower Company and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoD, and (yB) in the case of an Augmenting Lender, the Borrower Company and such Augmenting Lender execute an agreement substantially in the form of Exhibit H E hereto. No consent of any Lender (other than the Lenders participating in the increasesuch Revolving Commitment increase or Incremental Term Loan) shall be required for any such increase in Revolving Credit Commitments or Incremental Term Loan pursuant to this Section 2.15. Increases and 2.21.
(b) Revolving Commitment increases, new Revolving Credit Commitments and Incremental Term Loans created pursuant to this Section 2.15 2.21 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) or Incremental Term Loan shall become effective under this paragraph unless, unless (i) on the proposed date of the effectiveness of such increaseRevolving Commitment increase or Incremental Term Loan, (A) the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied both before and immediately after giving effect to such Revolving Commitment increase or Incremental Term Loan or waived by the Required Lenders Lenders, and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower Company and (B) the Borrower Company shall be in pro forma compliance with the each financial covenant contained set forth in Section 9.3 6.09, recomputed (1) as if such Revolving Commitment increase or Incremental Term Loan (and the application of proceeds thereof to the repayment of any other Indebtedness) had occurred on the first day of the most recent Reference Period preceding the date thereof for which the Company has delivered Financial Statements, (2) with Consolidated Senior Funded Debt, Consolidated Total Funded Debt, consolidated cash and consolidated Cash Equivalent Investments measured as of the date of and immediately after giving effect to any funding in connection with such Revolving Commitment increase or Incremental Term Loan (and the application of proceeds thereof to the repayment of any other Indebtedness) and (3) with Consolidated EBITDA and Consolidated Interest Expense measured for the Reference Period then most recently ended for which the Company has delivered Financial Statements, and (ii) the Administrative Agent shall have received documents and opinions (including legal opinions) consistent with those delivered on the effective date Effective Date as to the organizational corporate power and authority of the Borrower Borrowers to borrow hereunder immediately after giving effect to such increase. Revolving Commitment increase or Incremental Term Loan.
(c) On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such Revolving Commitment increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower Borrowers shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans as of the date of any increase in the Revolving Credit Commitments (with such reborrowing to consist of the Types of Revolving Credit Loans, with related LIBOR Interest Periods if applicable, specified in a notice delivered by the BorrowerCompany, in accordance with the requirements of Section 2.92.03). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurodollar Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.16 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods.
(d) The Incremental Term Loans (i) shall rank pari passu in right of payment with the Revolving Loans, the Original Term Loans and the Additional Term Loans, (ii) shall not mature earlier than the Maturity Date (but may have amortization prior to such date) and (iii) shall be treated substantially the same as (and in any event no more favorably than) the Revolving Loans; provided, that (x) the terms and conditions applicable to any Incremental Term Loan 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 Revolving Loans, the Original Term Loans and the Additional Term Loans.
(e) Incremental Term Loans may be made hereunder pursuant to an amendment or restatement (an “Incremental Term Loan Amendment”) of this Agreement and, as appropriate, the other Loan Documents, executed by the Company, each Increasing Lender participating in such Incremental Term Loan, if any, each Augmenting Lender participating in such Incremental Term Loan, if any, and the Administrative Agent. Each Incremental Term Loan Amendment may, without the consent of any other Lenders (except to the extent required pursuant to the provisos in Section 9.02(b)), effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section 2.21. Nothing contained in this Section 2.15 2.21 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereunder, or provide Incremental Term Loans, at any time.
Appears in 1 contract
Expansion Option. (a) The Borrower Borrowers may from time to time after the Restatement Effective Date elect to increase the Revolving Credit Commitments or any Extended Commitments (the “Increased Commitments”), in minimum increments an aggregate principal amount of not less than $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long as, as after giving effect thereto, the aggregate amount of all such increases Increased Commitments does not exceed the sum of (i) $50,000,0001,000,000,000, plus (ii) an unlimited amount so long as on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn) the Consolidated Net Leverage Ratio is no greater than 4.00 to 1.00 as of the last day of the most recent fiscal quarter for which financial statements have been delivered pursuant to Section 5.01(a) or (b); provided that Increased Commitments may be incurred under clauses (i) and (ii) above, and proceeds for any such incurrence may be utilized in a single transaction by first calculating the incurrence under clause (ii) above, and the aggregate amount of all such Increased Commitments may, subject to the conditions set forth in this Section 2.19 (including, without limitation, compliance with the covenants contained in Section 6.09 on a Pro Forma Basis), be an unlimited amount. The applicable Borrower may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit CommitmentCommitment or Extended Commitments, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments or Extended Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer applicable Borrower and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the applicable Borrower, to effect the provisions of this Section 2.152.19. Increases of Revolving Commitments and new Revolving Credit Extended Commitments created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by the applicable Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) Extended Commitments shall become effective be permitted under this paragraph unless, Section 2.19 unless (i) on the proposed date of the effectiveness of such increase, (A) increase in the Revolving Commitments or Extended Commitments the conditions set forth in paragraphs clauses (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and Company, (ii) the Administrative Agent shall have received such opinions and other certificates and documents as it may reasonably request and opinions consistent (iii) the Company shall be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with those delivered on the effective date covenants contained in Section 6.09 as to the organizational power and authority of the Borrower last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to borrow hereunder after giving effect Section 5.01(a) or (b) prior to such increasetime. On the effective date of any increase in the Revolving Credit CommitmentsCommitments or Extended Commitments (assuming that any Increased Commitments were fully drawn), (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) if, on the Borrower date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be deemed prepaid to have repaid the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and reborrowed Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Credit Loans as of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the date of any increase Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Commitments (with such reborrowing transactions effected pursuant to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9)immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Term SOFR Loan, shall be subject to indemnification by the applicable Borrower pursuant to the provisions of Section 2.11 2.15 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained The applicable Borrower shall seek commitments in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part respect of any Lender Increased Commitments from existing Lenders or from additional banks, financial institutions and other institutional lenders reasonably acceptable to increase its Revolving Credit Commitment hereunderthe Administrative Agent who will become Lenders in connection therewith.
(b) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
Appears in 1 contract
Expansion Option. The Borrower may from time All existing options to time elect to increase expand the Revolving Credit Commitments Premises set forth in minimum increments the Lease, whether a right of $25,000,000 (or such lesser amount as the Administrative Agent may agree) so long asfirst refusal, after giving effect thereto, the aggregate amount right of such increases does not exceed $50,000,000. The Borrower may arrange for any such increase to be provided by one or more Lenders (each Lender so agreeing to an increase in its Revolving Credit Commitment, an “Increasing Lender”), or by one or more new banks, financial institutions first offer or other entities right to expand, are deleted, and are replaced with the option to expand the Premises set forth in the balance of this Paragraph 5.
(each such new banka) During the Term, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing Revolving Credit Commitments, or provide new Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lenderthis Lease is in full force and effect, shall be subject to the approval of the Borrower, each Letter of Credit Issuer and the Administrative Agent and (ii) (x) Tenant is not in default under the Lease beyond the expiration of any applicable notice and cure period given to Tenant in the case Lease, (iii) Tenant has not assigned this Lease or subleased all or any portion of an Increasing Lender, the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G heretoPremises under any then-existing sublease, and (yiv) the right of first offer described in this Paragraph 5 is not being exercised in connection with or for the case purpose of an Augmenting Lenderfacilitating any such assignment or sublease, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent Landlord shall give Tenant notice of any Lender space (other than the Lenders participating in the increase“ROFO Space”) shall be required for any increase in Revolving Credit Commitments pursuant to this Section 2.15. Increases and new Revolving Credit Commitments created pursuant to this Section 2.15 shall become effective located on the date agreed by third or the Borrower, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the Revolving Credit Commitments (or in the Revolving Credit Commitment of any Lender) shall become effective under this paragraph unless, (i) on the proposed date fifth floors of the effectiveness Building that is available for lease to third parties. (For purposes of such increasethis Paragraph, (A) the conditions set forth any space covered by a renewal, extension or expansion option existing in paragraphs (a) and (b) of Section 6.2 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 and (ii) the Administrative Agent shall have received documents and opinions consistent with those delivered on the effective date as to the organizational power and authority of the Borrower to borrow hereunder after giving effect to such increase. On the effective date of any increase in the Revolving Credit Commitments, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lendertenant’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Percentage of such outstanding Revolving Credit Loans, and (ii) the Borrower shall be deemed to have repaid and reborrowed all outstanding Revolving Credit Loans lease as of the date of this Amendment, any renewal or extension option given by Landlord to any then-existing tenant for its then-existing space, or any right of first offer or right of first refusal existing as of the date of this Lease, shall not be “available for lease” until after each such option or right has expired.)
(b) If Tenant gives Landlord notice of Tenant’s interest in leasing the ROFO Space within ten (10) business days after notification by Landlord of the availability of the ROFO Space, the Parties shall negotiate reasonably to enter into an amendment to this Lease covering the ROFO Space, which may include, without limitation, an extension of the Term and an increase in Base Rent payable under this Lease during such extension. If Tenant fails to give Landlord such notice within such ten (10)-business day period, or if the Revolving Credit Commitments (with such reborrowing Parties, after using their best efforts, are unable to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9). The deemed payments made pursuant to clause (ii) of the immediately preceding sentence shall be accompanied by payment of all accrued interest agree on the amount prepaid and, of the monthly rental and other terms and conditions for the ROFO Space within thirty (30) days after receipt by Landlord of Tenant’s notice of interest in respect of each LIBOR Loan, shall be subject to indemnification leasing the ROFO Space (as evidenced by the Borrower pursuant execution and delivery of an amendment to the provisions this Lease), such right of Section 2.11 if the deemed payment occurs first offer shall terminate and be of no further force or effect with respect to such ROFO Space, but shall continue to apply to other than on the last day of the related LIBOR Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part of any Lender to increase its Revolving Credit Commitment hereundersubsequently available ROFO Space.
Appears in 1 contract
Expansion Option. (a) The Borrower Company may from time to time after the Restatement Effective Date elect to increase the U.S. Revolving Credit Commitments, Alternative Currency Revolving Commitments or any Extended Revolving Commitments (“Increased Commitments”) or enter into one or more tranches of term loans denominated in minimum increments Dollars (each, an “Incremental Term Loan”), in each case in an aggregate principal amount of not less than $25,000,000 (or such lesser amount as the Administrative Agent may agree) 20,000,000 so long as, after giving effect thereto, the aggregate amount of all such increases Increased Commitments and all such Incremental Term Loans (other than Refinancing Term Loans), when taken together with the aggregate principal amount of Incremental Substitute Indebtedness does not exceed the greater of (A) $50,000,000150,000,000 and (B) any other amount so long as on a Pro Forma Basis (and assuming all Increased Commitments were fully drawn) the Senior Secured Net Leverage Ratio as of the last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to Section 5.01(a) or (b) prior to such time would not exceed 3.0 to 1.0. The Borrower Company may arrange for any such increase or tranche to be provided by one or more Lenders (each Lender so agreeing to an increase in its U.S. Revolving Credit Commitment, Alternative Currency Revolving Commitments or Extended Revolving Commitment, or to participate in such Incremental Term Loan, an “Increasing Lender”), or by one or more new banks, financial institutions or other entities (each such new bank, financial institution or other entity, an “Augmenting Lender”; provided that no Ineligible Institution may be an Augmenting Lender), which agree to increase their existing U.S. Revolving Credit Commitment, Alternative Currency Revolving Commitments or Extended Revolving Commitment, or to participate in such Incremental Term Loan, or extend U.S. Revolving Commitments, Alternative Currency Revolving Commitments or provide new Extended Revolving Credit Commitments, as the case may be; provided that (i) each Augmenting Lender (and, in the case of an Increased Commitment, each Increasing Lender, ) shall be subject to the approval of the Borrower, each Letter of Credit Issuer Company and the Administrative Agent and (ii) (x) and, in the case of an Increasing LenderIncreased Commitment, each Issuing Bank and Swingline Lender (such consents not to be unreasonably withheld or delayed). Without the Borrower and such Increasing Lender execute an agreement substantially in the form of Exhibit G hereto, and (y) in the case of an Augmenting Lender, the Borrower and such Augmenting Lender execute an agreement substantially in the form of Exhibit H hereto. No consent of any Lender (Lenders other than the relevant Increasing Lenders participating or Augmenting Lenders, this Agreement and the other Loan Documents may be amended pursuant to an Additional Credit Extension Amendment as may be necessary or appropriate, in the increase) shall be required for any increase in Revolving Credit Commitments pursuant reasonable opinion of the Administrative Agent and the Company, to effect the provisions of this Section 2.152.19. Increases of U.S. Revolving Commitments, Alternative Currency Revolving Commitments and Extended Revolving Commitment and new Revolving Credit Commitments Incremental Term Loans created pursuant to this Section 2.15 2.19 shall become effective on the date agreed by the BorrowerCompany, the Administrative Agent and the relevant Increasing Lenders or Augmenting Lenders, Lenders and the Administrative Agent shall notify each Lender thereof. Notwithstanding the foregoing, no increase in the U.S. Revolving Credit Commitments, Alternative Currency Revolving Commitments (or in the Extended Revolving Credit Commitment of any Lender) Commitments or Incremental Term Loans shall become effective be permitted under this paragraph unless, unless (i) on the proposed date of the effectiveness of such increaseincrease in the U.S. Revolving Commitments, (A) Alternative Currency Revolving Commitments or Extended Revolving Commitments or borrowing of such Incremental Term Loan, the conditions set forth in paragraphs (a) and (b) of Section 6.2 4.02 shall be satisfied or waived by the Required Lenders and the Administrative Agent shall have received a certificate to that effect dated such date and executed by an Authorized a Financial Officer of the Borrower and (B) the Borrower shall be in compliance with the covenant contained in Section 9.3 Company and (ii) the Administrative Agent Company shall have received documents and opinions consistent be in compliance, calculated on a Pro Forma Basis (assuming for this purpose that all Increased Commitments were fully drawn), with those delivered on the effective date covenants contained in Section 6.09 as to the organizational power and authority of the Borrower last day of the most recent fiscal quarter of the Company for which financial statements have been delivered pursuant to borrow hereunder after giving effect Section 5.01(a) or (b) prior to such increasetime. On the effective date of any increase in the U.S. Revolving Credit Commitments, Alternative Currency Revolving Commitment or Extended Revolving Commitments or any Incremental Term Loans being made, (i) each relevant Increasing Lender and Augmenting Lender shall make available to the Administrative Agent such amounts in immediately available funds as the Administrative Agent shall determine, for the benefit of the other Lenders, as being required in order to cause, after giving effect to such increase and the use of such amounts to make payments to such other Lenders, each Lender’s portion of the outstanding Revolving Credit Loans of all the Lenders to equal its Revolving Credit Commitment Applicable Percentage of such outstanding Revolving Credit Loans, and (ii) except in the Borrower case of any Incremental Term Loans, if, on the date of such increase, there are any Revolving Loans of the applicable Class outstanding, such Revolving Loans shall on or prior to the effectiveness of such Increased Commitments be deemed prepaid to have repaid the extent necessary from the proceeds of additional Revolving Loans made hereunder by the Increasing Lenders and reborrowed Augmenting Lenders, so that, after giving effect to such prepayments and any borrowings on such date of all or any portion of such Increased Commitments, the principal balance of all outstanding Revolving Credit Loans as of such Class owing to each Lender with a Revolving Commitment of such Class is equal to such Lender’s pro rata share (after giving effect to any nonratable Increased Commitment pursuant to this Section 2.19) of all then outstanding Revolving Loans of such Class. The Administrative Agent and the date of any increase Lenders hereby agree that the borrowing notice, minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the Revolving Credit Commitments (with such reborrowing transactions effected pursuant to consist of the Types of Revolving Credit Loans, with related LIBOR Periods if applicable, specified in a notice delivered by the Borrower, in accordance with the requirements of Section 2.9)immediately preceding sentence. The deemed payments made pursuant to clause (ii) of the immediately second preceding sentence shall be accompanied by payment of all accrued interest on the amount prepaid and, in respect of each LIBOR Eurocurrency Loan, shall be subject to indemnification by the Borrower Borrowers pursuant to the provisions of Section 2.11 2.15 if the deemed payment occurs other than on the last day of the related LIBOR Interest Periods. Nothing contained in this Section 2.15 shall constitute, or otherwise be deemed to be, a commitment on the part The terms of any Incremental Term Loans shall be as set forth in the amendment to this Agreement providing for such Incremental Term Loans; provided that (i) the final maturity date of any Incremental Term Loans shall be no earlier than the Term Loan Maturity Date, (ii) the Weighted Average Life to Maturity of such Incremental Term Loans shall not be shorter than the then remaining Weighted Average Life to Maturity of the Tranche B Term Loans, (iii) Incremental Term Loans shall not participate on a greater than pro rata basis with the Tranche B Term Loans in any optional or mandatory prepayment hereunder, (iv) the provisions with respect to payment of interest, original issue discount (“OID”) and upfront fees shall be as set forth in the amendment providing for such Incremental Term Loans; provided further that if the Yield of any Incremental Term Loans (other than Refinancing Term Loans) exceeds the Yield of the Tranche B Term Loans by more than 50 basis points, then the Applicable Rate for the Tranche B Term Loans shall be increased to the extent required so that the Yield of such Class or Classes of Term Loans is equal to the Yield of such Incremental Term Loans minus 50 basis points and (v) all other terms applicable to such Incremental Term Loans (other than provisions specified in clauses (i) through (iv) above) shall be consistent with the terms of the then outstanding Tranche B Term Loans. For the avoidance of doubt, no Lender shall have any obligation to increase its Revolving Credit provide any Increased Commitment hereunderor Incremental Term Loan.
(b) This Section 2.19 shall override any provisions in Section 9.02 to the contrary.
Appears in 1 contract
Sources: Credit Agreement (Dole Food Co Inc)