New Term Loan. Pursuant to Section 2.12 of the Credit Agreement, on the Increased Amount Date, the Initial Incremental Lender hereby agrees to make to the Company a term loan in respect of its Initial Incremental Term Loan Commitment, in the aggregate principal amount of $135,000,000 (the “Initial Incremental Term Loan”) upon, and subject to, the following terms and conditions: A. the Initial Incremental Lender hereby becomes a Lender under the Credit Agreement with respect to its Initial Incremental Term Loan Commitment and, following the making thereof, the Initial Incremental Term Loan. Upon the making thereof, the Initial Incremental Term Loan shall be deemed, and is hereby made, a pro rata tranche of the existing Term Loans under the Credit Agreement (the “Original Term Loans”), and all references to such Original Term Loans and, except as otherwise provided herein, each provision of the Credit Agreement applicable to such Original Term Loans shall apply to and be deemed to include the Initial Incremental Term Loan. Without limitation of the foregoing, the maturity date of the Initial Incremental Term Loan shall be the Term Loan Maturity Date; B. upon the funding of the Initial Incremental Term Loan, $135,000,000 shall be added to the Register for purposes of determining (together with any Original Term Loans of the Initial Incremental Lender) the Initial Incremental Lender’s Term Loans; C. Company shall repay the Initial Incremental Term Loan in the manner consistent with Section 2.4 of the Credit Agreement and in the amounts set forth on Exhibit 1 hereto; D. the rate of interest applicable to the Initial Incremental Term Loan shall be the same as is applicable to the Original Term Loans; provided, however, that in the event that any additional Incremental Term Loan is entered into on or prior to the first anniversary of the funding of the Initial Incremental Term Loan and the interest margins, upfront fees, original issue discount or any other component of the Yield on such additional Incremental Term Loan (the “Additional Incremental Component”) exceeds the corresponding component of Yield on the Initial Incremental Term Loan (the “Initial Incremental Component”) (determined as provided in Section 2.12(d) of the Credit Agreement), then such Initial Incremental Component shall be adjusted such that the Initial Incremental Term Loan benefits equally with such additional Incremental Term Loan, including in the case of (i) the interest margins, the interest margins for the Initial Incremental Term Loan shall automatically be increased to a level such that the interest margins on the Initial Incremental Term Loan shall be equal to the interest margins on such additional Incremental Term Loan and (ii) any fee or original issue discount, an additional fee for the Initial Incremental Term Loan shall be due and payable to each holder of the Initial Incremental Term Loan simultaneously with such Additional Incremental Component in an amount equal to the amount by which the Additional Incremental Component exceeds the Initial Incremental Component; provided further, that in the event that no additional Incremental Term Loan is entered into on or prior to the 90th day following the funding of the Initial Incremental Term Loan, the interest margins on the Initial Incremental Term Loan shall be automatically increased by 0.50%; and E. in accordance with Section 2.5(a) of the Credit Agreement, the proceeds of the Initial Incremental Term Loan shall be used to fund Permitted Acquisitions and/or the opening, development or expansion of sand processing and mining facilities and to pay fees and expenses incurred in connection therewith.
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New Term Loan. Pursuant Subject to Section 2.12 of the Credit Agreementterms and conditions hereof and in reliance upon the representations and warranties set forth herein, on the Increased Amount Date(i) each First Amendment Term Loan Lender severally, the Initial Incremental Lender hereby but not jointly, agrees to make available to the Company Borrowers on the First Amendment Effective Date such First Amendment Term Loan Lender’s First Amendment Term Loan Commitment Percentage of a term loan in respect of its Initial Incremental Dollars (the “First Amendment Term Loan Commitment, Loan”) in the aggregate principal amount of ONE HUNDRED TWENTY-NINE MILLION TWO HUNDRED FIFTY THOUSAND DOLLARS ($135,000,000 129,250,000) (the “Initial Incremental First Amendment Term Loan Committed Amount”) and (ii) each Second Amendment Term Loan Lender (together with the First Amendment Term Loan Lenders, each a “New Term Loan Lender”) severally, but not jointly, agrees to make available to the Borrowers on the Second Amendment Effective Date such Second Amendment Term Loan Lender’s Second Amendment Term Loan Commitment Percentage of a term loan in Dollars (the “Second Amendment Term Loan” and together with the First Amendment Term Loan, the “New Term Loan”) upon, and subject to, in the following terms and conditions:
A. the Initial Incremental Lender hereby becomes a Lender under the Credit Agreement with respect to its Initial Incremental Term Loan Commitment and, following the making thereof, the Initial Incremental Term Loan. Upon the making thereof, the Initial Incremental Term Loan shall be deemed, and is hereby made, a pro rata tranche aggregate principal amount of the existing Term Loans under the Credit Agreement TWENTY-FIVE MILLION DOLLARS ($25,000,000) (the “Original Second Amendment Term Loans”), Loan Committed Amount” and all references to such Original together with the First Amendment Term Loans and, except as otherwise provided herein, each provision of the Credit Agreement applicable to such Original Term Loans shall apply to and be deemed to include the Initial Incremental Term Loan. Without limitation of the foregoingLoan Committed Amount, the maturity date of the Initial Incremental “New Term Loan shall be Committed Amount”) in each case for the purposes set forth in Section 3.11. The New Term Loan Maturity Date;
B. upon may consist of Alternate Base Rate Loans or LIBOR Rate Loans, or a combination thereof, as the funding of the Initial Incremental Term Loan, $135,000,000 shall be added to the Register for purposes of determining (together with any Original Term Loans of the Initial Incremental Lender) the Initial Incremental Lender’s Term Loans;
C. Company shall repay the Initial Incremental Term Loan in the manner consistent with Section 2.4 of the Credit Agreement and in the amounts set forth on Exhibit 1 hereto;
D. the rate of interest applicable to the Initial Incremental Term Loan shall be the same as is applicable to the Original Term LoansParent Borrower may request; provided, however, that in the event that any additional Incremental New Term Loan is entered into made on the First Amendment Effective Date and/or the Second Amendment Effective Date, as applicable, may consist of LIBOR Rate Loans if the Parent Borrower requests such LIBOR Rate Loan in writing on the third Business Day prior to the First Amendment Effective Date and/or the Second Amendment Effective Date, as applicable, and delivers a funding indemnity letter acceptable to the Administrative Agent on or prior to such third Business Day. Amounts repaid on the first anniversary New Term Loan may not be reborrowed. For the avoidance of doubt, the First Amendment Term Loan shall replace and refinance the Initial Term Loan, and the Initial Term Loan, and all obligations thereunder (other than indemnification obligations that pursuant to the express terms of the funding Credit Documents survive the termination of the Initial Incremental Term Loan), shall be terminated upon the borrowing of the First Amendment Term Loan and the interest margins, upfront fees, original issue discount or any other component of the Yield on such additional Incremental Term Loan (the “Additional Incremental Component”) exceeds the corresponding component of Yield on the Initial Incremental Term Loan (the “Initial Incremental Component”) (determined as provided in Section 2.12(d) of the Credit Agreement), then such Initial Incremental Component shall be adjusted such that the Initial Incremental Term Loan benefits equally with such additional Incremental Term Loan, including in the case of (i) the interest margins, the interest margins for the Initial Incremental Term Loan shall automatically be increased to a level such that the interest margins on the Initial Incremental Term Loan shall be equal to the interest margins on such additional Incremental Term Loan and (ii) any fee or original issue discount, an additional fee for the Initial Incremental Term Loan shall be due and payable to each holder immediate repayment of the Initial Incremental Term Loan simultaneously with such Additional Incremental Component in an amount equal to the amount by which the Additional Incremental Component exceeds the Initial Incremental Component; provided further, that in the event that no additional Incremental Term Loan is entered into on or prior to the 90th day following the funding of the Initial Incremental Term Loan, the interest margins on the Initial Incremental Term Loan shall be automatically increased by 0.50%; and
E. in accordance with Section 2.5(a) of the Credit Agreement, the proceeds of the Initial Incremental Term Loan shall be used to fund Permitted Acquisitions and/or the opening, development or expansion of sand processing and mining facilities and to pay fees and expenses incurred in connection therewiththereof.
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New Term Loan. Pursuant (a) Subject to Section 2.12 of the Credit Agreement, on the Increased Amount Dateterms and conditions set forth herein, the Initial Incremental Lender hereby Bank agrees to make the New Term Loan to the Company a term loan in respect of its Initial Incremental Term Loan Commitment, in the aggregate principal amount of $135,000,000 (the “Initial Incremental Term Loan”) upon, and subject to, the following terms and conditions:
A. the Initial Incremental Lender hereby becomes a Lender under the Credit Agreement with respect to its Initial Incremental Term Loan Commitment and, following the making thereof, the Initial Incremental Term Loan. Upon the making thereof, the Initial Incremental Term Loan shall be deemed, and is hereby made, a pro rata tranche of the existing Term Loans under the Credit Agreement (the “Original Term Loans”), and all references to such Original Term Loans and, except as otherwise provided herein, each provision of the Credit Agreement applicable to such Original Term Loans shall apply to and be deemed to include the Initial Incremental Term Loan. Without limitation of the foregoing, the maturity date of the Initial Incremental Term Loan shall be the Term Loan Maturity Date;
B. upon the funding of the Initial Incremental Term Loan, $135,000,000 shall be added to the Register for purposes of determining (together with any Original Term Loans of the Initial Incremental Lender) the Initial Incremental Lender’s Term Loans;
C. Company shall repay the Initial Incremental Term Loan in the manner consistent with Section 2.4 of the Credit Agreement and in the amounts set forth on Exhibit 1 hereto;
D. the rate of interest applicable to the Initial Incremental Term Loan shall be the same as is applicable to the Original Term Loans; provided, however, that in the event that any additional Incremental Term Loan is entered into on or prior to the first anniversary of the funding of the Initial Incremental Term Loan and the interest margins, upfront fees, original issue discount or any other component of the Yield on such additional Incremental Term Loan (the “Additional Incremental Component”) exceeds the corresponding component of Yield Borrower on the Initial Incremental Term Loan (the “Initial Incremental Component”) (determined as provided in Section 2.12(d) of the Credit Agreement), then such Initial Incremental Component shall be adjusted such that the Initial Incremental Term Loan benefits equally with such additional Incremental Term Loan, including in the case of (i) the interest margins, the interest margins for the Initial Incremental Term Loan shall automatically be increased to a level such that the interest margins on the Initial Incremental Term Loan shall be equal to the interest margins on such additional Incremental Term Loan and (ii) any fee or original issue discount, an additional fee for the Initial Incremental Term Loan shall be due and payable to each holder of the Initial Incremental Term Loan simultaneously with such Additional Incremental Component Effective Date in an amount equal to the amount by which the Additional Incremental Component exceeds the Initial Incremental Component; provided further, that in the event that no additional Incremental Term Loan is entered into on Commitment. The amounts borrowed under this Section 2.8(a) and repaid or prior to the 90th day following the funding of the Initial Incremental Term Loan, the interest margins on the Initial Incremental prepaid may not be reborrowed.
(b) The New Term Loan shall be automatically increased made upon the Borrower's irrevocable notice to the Bank, which may be given by 0.50%; telephone. Such notice must be received by the Bank not later than 3:00 p.m. (New York City time) two Business Days prior to the requested date of the borrowing of such New Term Loan, and must set forth (i) the requested borrowing date commencement date, as the case may be, (ii) whether the Loan shall be a LIBOR Loan or a Fluctuating Rate Loan, and (iii) if entirely a LIBOR Loan, the length of the Interest Period therefor, which shall be one, two, three or six months, as the Borrower shall elect. Such telephonic notice by the Borrower pursuant to this Section 2.8(b) must be confirmed promptly by delivery to the Bank of a written borrowing notice (in form and substance reasonably satisfactory to the Bank), appropriately completed and signed by a chief financial officer of the Borrower. Thereafter, if no Event of Default is (at the time in question) continuing, the Borrower may split the initial Borrowing of the New Term Loan into multiple tranches of Borrowings, and may elect to convert any tranche of a Borrowing of the New Term Loan to create a tranche of a Borrowing of the New Term Loan of a different Type (or Interest Period, where applicable) or to continue such tranche and, in the case of a tranche of LIBOR Borrowing of the New Term Loan, may elect Interest Periods therefor, all in accordance with, and as provided in, Section 2.9.
E. (c) The Borrower shall repay to the Bank the aggregate principal amount of the New Term Loan on the following dates in the respective amounts set forth opposite such dates (which amounts shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.5(a) of the Credit Agreement2.10)): ---------------------------- ----------------------------------------- Date Amount ---------------------------- ----------------------------------------- November 8, the proceeds of the Initial Incremental Term Loan shall be used to fund Permitted Acquisitions and/or the opening2007 $0 ---------------------------- ----------------------------------------- February 8, development or expansion of sand processing and mining facilities and to pay fees and expenses incurred in connection therewith.2008 $892,857.14 ---------------------------- ----------------------------------------- May 8, 2008 $892,857.14 ---------------------------- ----------------------------------------- August 8, 2008 $892,857.14 ---------------------------- ----------------------------------------- November 8, 2008 $892,857.14 ---------------------------- ----------------------------------------- February 8, 2009 $892,857.14 ---------------------------- ----------------------------------------- May 8, 2009 $892,857.14 ---------------------------- ----------------------------------------- August 8, 2009 $892,857.14 ---------------------------- ----------------------------------------- November 8, 2009 $892,857.14 ---------------------------- ----------------------------------------- February 8, 2010 $892,857.14 ---------------------------- ----------------------------------------- May 8, 2010 $892,857.14 ---------------------------- ----------------------------------------- August 8, 2010 $892,857.14 ---------------------------- ----------------------------------------- November 8, 2010 $892,857.14 ---------------------------- ----------------------------------------- February 8, 2011 $892,857.14 ---------------------------- ----------------------------------------- May 8, 2011 $892,857.14 ---------------------------- ----------------------------------------- August 8, 2011 $892,857.14 ---------------------------- ----------------------------------------- November 8, 2011 $892,857.14 ---------------------------- ----------------------------------------- February 8, 2012 $892,857.14 ---------------------------- ----------------------------------------- May 8, 2012 $892,857.14 ---------------------------- ----------------------------------------- August 8, 2012 $8,928,571.48 ---------------------------- -----------------------------------------
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New Term Loan. Pursuant to Section 2.12 2.22 of the Credit Agreement, on the Increased Amount Date, the Initial Incremental Term Lender hereby agrees that it will be deemed on the Closing Date to make to the Company CGG US a term loan in respect of its Initial Incremental Term Loan Commitment, in the an aggregate principal amount of $135,000,000 90,000,000 (the “Initial Incremental Term Loan”) upon, and subject to, the following terms and conditions:
A. the Initial Incremental Term Lender hereby becomes will, as of the Closing Date, become an Incremental Term Lender and a Lender under the Credit Agreement with respect to its Initial Incremental Term Loan Commitment and, following the deemed making thereof, the Initial Incremental Term Loan. Upon the deemed making thereof, the Initial Incremental Term Loan shall be deemed, and is hereby made, deemed a pro rata tranche of the existing Term Loans under the Credit Agreement to be made on the Closing Date immediately prior to the incurrence of the Incremental Term Loan as described herein (the “Original Term Loans”), to be included in each Borrowing of outstanding Term Loans on a pro rata basis, and all references to such Original Term Loans and, except as otherwise provided herein, each provision of the Credit Agreement and any other Finance Document applicable to such Original Term Loans shall apply to and be deemed to include the Initial Incremental Term Loan. .
B. Without limitation of the foregoing, the maturity date of the Initial Incremental Term Loan shall rank pari passu in all respects, including in right of payment and of security, with, and shall have the same terms as, the Original Term Loans, including but not limited to as to (i) maturity date, which shall be the Term Loan Maturity DateDate of the Original Term Loans, and (ii) the rate of interest, which shall be the same as is applicable to the Original Term Loans;
B. C. CGG US and the Incremental Term Lender agree that (i) the receipt by the Incremental Term Lender of (a) the Incremental Term Loan in a principal amount of $90,000,000 plus (b) cash interest in the amount of €618,750.01 assuming that the Closing Date will occur on December 18, 2015 plus (c) cash interest in Euro of €12,890.63 per day for each day from December 19 until (and not including) the Closing Date is in exchange for all right, title and interest of the Incremental Term Lender in the Fugro Vendor Loan Agreement, (ii) upon the deemed incurrence of the Incremental Term Loan on the Closing Date, the Incremental Term Lender transfers all right, title and interest in the Fugro Vendor Loan Agreement to CGG US and (iii) the Incremental Term Lender shall not be required to fund its Incremental Term Loan Commitment and the Incremental Term Loan shall be deemed to be made on a cashless basis;
D. upon the deemed funding of the Initial Incremental Term LoanLoan on the Closing Date, $135,000,000 90,000,000 shall be added to the Register for purposes of determining (together with any Original Term Loans of the Initial Incremental Term Lender) the Initial Incremental Term Lender’s Term Loans;; and
C. Company E. CGG US shall repay the Initial Incremental Term Loan in the manner consistent with Section 2.4 of the Credit Agreement and in the amounts set forth on Exhibit 1 hereto;
D. the rate of interest applicable to the Initial Incremental Term Loan shall be the same as is applicable to the Original Term Loans; provided, however, that in the event that any additional Incremental Term Loan is entered into on or prior to the first anniversary of the funding of the Initial Incremental Term Loan and the interest margins, upfront fees, original issue discount or any other component of the Yield on such additional Incremental Term Loan (the “Additional Incremental Component”) exceeds the corresponding component of Yield on the Initial Incremental Term Loan (the “Initial Incremental Component”) (determined as provided in Section 2.12(d) 2.11 of the Credit Agreement), then such Initial Incremental Component shall be adjusted such that the Initial Incremental Term Loan benefits equally with such additional Incremental Term Loan, including in the case of (i) the interest margins, the interest margins for the Initial Incremental Term Loan shall automatically be increased to a level such that the interest margins on the Initial Incremental Term Loan shall be equal to the interest margins on such additional Incremental Term Loan and (ii) any fee or original issue discount, an additional fee for the Initial Incremental Term Loan shall be due and payable to each holder of the Initial Incremental Term Loan simultaneously with such Additional Incremental Component in an amount equal to the amount by which the Additional Incremental Component exceeds the Initial Incremental Component; provided further, that in the event that no additional Incremental Term Loan is entered into on or prior to the 90th day following the funding of the Initial Incremental Term Loan, the interest margins on the Initial Incremental Term Loan shall be automatically increased by 0.50%; and
E. in accordance with Section 2.5(a) of the Credit Agreement, the proceeds of the Initial Incremental Term Loan shall be used to fund Permitted Acquisitions and/or the opening, development or expansion of sand processing and mining facilities and to pay fees and expenses incurred in connection therewith.
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New Term Loan. Pursuant to Section 2.12 of (a) At the Credit AgreementClosing, on the Increased Amount Date, the Initial Incremental (i) New Lender hereby agrees to shall make a term loan to the Company a term loan in respect of its Initial Incremental Term Loan Commitment, in the aggregate principal amount of $135,000,000 3,000,000 (the “Initial Incremental New Term Loan”); (ii) upon, the Company shall execute and subject to, deliver to New Lender a promissory note in substantially the following terms and conditions:
A. the Initial Incremental Lender hereby becomes a Lender under the Credit Agreement with respect to its Initial Incremental Term Loan Commitment and, following the making thereof, the Initial Incremental Term Loan. Upon the making thereof, the Initial Incremental Term Loan shall be deemed, and is hereby made, a pro rata tranche of the existing Term Loans under the Credit Agreement form attached hereto as Exhibit I (the “Original Promissory Note”) evidencing the New Term LoansLoan; and (iii) the Company and New Lender shall enter into a security agreement in substantially the form attached hereto as Exhibit J (the “Security Agreement”), .
(b) The transactions contemplated by the Security Agreement to be consummated upon the execution and all references to such Original Term Loans and, except as otherwise provided herein, each provision of delivery thereof shall be consummated concurrently with the Credit Agreement applicable to such Original Term Loans shall apply to and be deemed to include the Initial Incremental Term LoanClosing. Without limitation limiting the generality of the foregoing, the maturity date Company and New Lender shall cause account control agreements relating to certain of the Initial Incremental Company’s accounts as specified in the Security Agreement, in form and substance reasonably acceptable to the Company and New Lender, to be entered into by and among the Company, New Lender and the applicable financial institutions as soon as reasonably practicable following the Closing (the “Account Control Agreements”). The Security Agreement and the Account Control Agreements are referred to collectively herein as the “Security Documents.”
(c) The Promissory Note and the Security Documents are referred to collectively herein as the “New Term Loan shall be the Term Loan Maturity Date;Documents.”
B. upon the funding (d) For so long as any of the Initial Incremental Term LoanCastanea Entities or their respective Affiliates holds any membership interest in the Company, $135,000,000 the Castanea Entities (and their respective designees and assignees) shall be added have a right of first refusal on any proposed transfer or assignment, in whole or in part, of the Promissory Note (a “Proposed Transfer”), as set forth more fully below. In the event of any Proposed Transfer, New Lender shall deliver a written notice (the “Proposed Transfer Notice”) to the Register for purposes Castanea Entities, not later than fifteen (15) days prior to the consummation of determining such Proposed Transfer, setting forth the material terms and conditions (together with any Original Term Loans including price and form of consideration) of the Initial Incremental Lender) Proposed Transfer and the Initial Incremental Lender’s Term Loans;
C. Company identity of the prospective transferee. The Castanea Entities shall repay have the Initial Incremental Term Loan right, but not the obligation, to purchase all, but not less than all, of that portion of the Promissory Note subject to the Proposed Transfer, on the terms and conditions specified in the manner consistent with Section 2.4 Proposed Transfer Notice. To exercise such right of first refusal, the Castanea Entities must deliver written notice thereof within ten (10) days after delivery of the Credit Agreement and Proposed Transfer Notice, in which event the amounts set forth on Exhibit 1 hereto;
D. the rate consummation thereof shall occur not later than seven (7) Business Days after delivery of interest applicable to the Initial Incremental Term Loan shall be the same as is applicable to the Original Term Loans; provided, however, that in such election notice. In the event that the Castanea Entities do not exercise such right of first refusal, New Lender may consummate the Proposed Transfer on the terms and conditions specified in the Proposed Transfer Notice. The foregoing right of first refusal shall not apply to any additional Incremental Term Loan is entered into on Proposed Transfer to Madden or prior any of its Affiliates, provided that each such transferee shall execute and deliver a written agreement, in form and substance reasonably acceptable to the Castanea Entities, to be bound by the provisions of this Section 8.4(d) to the same extent as New Lender. The foregoing right of first anniversary refusal shall not apply to (nor be assignable to) any purchaser of all or a majority of the funding Castanea Entities’ membership interests other than an Affiliate of the Initial Incremental Term Loan Castanea Entities, and the interest marginsis, upfront feesinstead, original issue discount or any other component of the Yield on such additional Incremental Term Loan (the exclusive and “Additional Incremental Component”) exceeds the corresponding component of Yield on the Initial Incremental Term Loan (the “Initial Incremental Component”) (determined as provided in Section 2.12(d) of the Credit Agreement), then such Initial Incremental Component shall be adjusted such that the Initial Incremental Term Loan benefits equally with such additional Incremental Term Loan, including in the case of (i) the interest margins, the interest margins for the Initial Incremental Term Loan shall automatically be increased to a level such that the interest margins on the Initial Incremental Term Loan shall be equal personal” solely to the interest margins on such additional Incremental Term Loan and (ii) any fee or original issue discount, an additional fee for the Initial Incremental Term Loan shall be due and payable to each holder of the Initial Incremental Term Loan simultaneously with such Additional Incremental Component in an amount equal to the amount by which the Additional Incremental Component exceeds the Initial Incremental Component; provided further, that in the event that no additional Incremental Term Loan is entered into on or prior to the 90th day following the funding of the Initial Incremental Term Loan, the interest margins on the Initial Incremental Term Loan shall be automatically increased by 0.50%; and
E. in accordance with Section 2.5(a) of the Credit Agreement, the proceeds of the Initial Incremental Term Loan shall be used to fund Permitted Acquisitions and/or the opening, development or expansion of sand processing and mining facilities and to pay fees and expenses incurred in connection therewithCastanea Entities.
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