Additional Financing The Borrower hereby covenants and agrees that, except for Permitted Encumbrances and except as otherwise contemplated in the Mortgage, without the prior written consent of the Significant Bondholder, if any, it shall not create, incur, assume or guaranty any financing secured by the Project or other financings except (i) the transactions contemplated in the Subordinate Loan Documents, (ii) the Permitted Encumbrances and as otherwise contemplated in the Mortgage, and (iii) unsecured loans or advances by the Borrower’s partners as contemplated or permitted by the Partnership Agreement.
Incremental Term Loan Commitments (a) Lead Borrower may at any time and from time to time request that one or more Lenders (or one or more Eligible Transferees who will become Lenders) provide Incremental Term Loan Commitments to the Borrowers and, subject to the terms and conditions contained in this Agreement and in the relevant Incremental Term Loan Amendment, make Incremental Term Loans pursuant thereto; it being understood and agreed, however, that (i) no Lender shall be obligated to provide an Incremental Term Loan Commitment as a result of any such request by Lead Borrower, (ii) any Lender (including any Eligible Transferee who will become a Lender) may so provide an Incremental Term Loan Commitment without the consent of any other Lender, (iii) each Tranche of Incremental Term Loan Commitments shall be denominated in U.S. Dollars, (iv) the amount of Incremental Term Loan Commitments made available pursuant to a given Incremental Term Loan Amendment shall be in a minimum aggregate amount for all Lenders which provide an Incremental Term Loan Commitment thereunder (including Eligible Transferees who will become Lenders) of at least $25,000,000, (v) the aggregate principal amount of any Incremental Term Loans on the date of the incurrence thereof shall not exceed, when taken together with any incurrence of Permitted Pari Passu Notes or Permitted Junior Debt pursuant to Section 10.04(xxvii)(A)(1) on such date, (x) the then-remaining Fixed Dollar Incremental Amount as of the date of incurrence plus (y) subject to the satisfaction of the applicable Incurrence-Based Incremental Facility Test, any Incurrence-Based Incremental Amount that may be incurred thereunder on such date, (vi) the proceeds of all Incremental Term Loans incurred by the Borrowers may be used for any purpose not prohibited under this Agreement, (vii) Lead Borrower shall specifically designate, in consultation with the Administrative Agent, the Tranche of the Incremental Term Loan Commitments being provided thereunder (which Tranche shall be a new Tranche (i.e., not the same as any existing Tranche of Incremental Term Loans, Incremental Term Loan Commitments or other Term Loans), unless the requirements of Section 2.15(c) are satisfied), which designation shall be set forth in the applicable Incremental Term Loan Amendment, (viii) if to be incurred as a new Tranche of Incremental Term Loans, such Incremental Term Loans shall have the same terms as each other Tranche of Term Loans as in effect immediately prior to the effectiveness of the relevant Incremental Term Loan Agreement, except as to purpose (which is subject to the requirements of the preceding clause (vi)) and optional prepayment provisions and mandatory prepayment provisions (which are governed by Section 5.02; provided that each new Tranche of Incremental Term Loans shall be entitled to share in mandatory prepayments on a ratable basis with the other Tranches of Term Loans (unless the holders of the Incremental Term Loans of any Tranche agree to take a lesser share of any such prepayments)); provided, however, that (I) the maturity and amortization of such Tranche of Incremental Term Loans may differ, so long as such Tranche of Incremental Term Loans shall have (a) a Maturity Date of no earlier than the Latest Maturity Date as of the date such Indebtedness was incurred and (b) a Weighted Average Life to Maturity of no less than the Weighted Average Life to Maturity as then in effect for the Tranche of then outstanding Term Loans with the then longest Weighted Average Life to Maturity (in each case of the foregoing clauses (a) and (b), excluding for this purpose, interim loan financings that provide for automatic rollover, subject to customary conditions, to Indebtedness otherwise meeting the requirements of this clause (I)), (II) the Effective Yield applicable to such Tranche of Incremental Term Loans may differ from that applicable to the then outstanding Tranches of Term Loans, with the Effective Yield applicable thereto to be specified in the respective Incremental Term Loan Amendment; provided, however, that if the Effective Yield for any such Incremental Term Loans incurred prior the date that is six (6) months after the First Restatement Effective Date, exceeds the Effective Yield then applicable to any then outstanding Initial Term Loans by more than 0.75% per annum, the Applicable Margins for all then outstanding Initial Term Loans shall be increased as of such date in accordance with the requirements of the definition of “Applicable Margin” and (III) such Tranche of Incremental Term Loans may have other terms (other than those described in preceding clauses (I) and (II)) that may differ from those of other Tranches of Term Loans, including, without limitation, as to the application of optional or voluntary prepayments among the Incremental Term Loans and the existing Term Loans, in each case, taken as a whole, that are not materially more favorable to the lenders providing such Incremental Term Loans than the provisions applicable to the existing Term Loans or as are otherwise reasonably satisfactory to the Administrative Agent, (ix) all Incremental Term Loans (and all interest, fees and other amounts payable thereon) incurred by the Borrowers shall be Obligations of the Borrowers under this Agreement and the other applicable Credit Documents and shall be secured by the Security Agreements, and guaranteed under each relevant Guaranty, on a pari passu basis with all other Term Loans secured by the Security Agreement and guaranteed under each such Guaranty, (x) each Lender (including any Eligible Transferee who will become a Lender) agreeing to provide an Incremental Term Loan Commitment pursuant to an Incremental Term Loan Amendment shall, subject to the satisfaction of the relevant conditions set forth in this Agreement, make Incremental Term Loans under the Tranche specified in such Incremental Term Loan Amendment as provided in Section 2.01(b) and such Term Loans shall thereafter be deemed to be Incremental Term Loans under such Tranche for all purposes of this Agreement and the other applicable Credit Documents and (xi) all Incremental Term Loan Commitment Requirements are satisfied.
Incremental Term Loans Subject to the terms and conditions set forth herein, the Borrower shall have the right, at any time and from time to time prior to the earlier of (A) the Maturity Date and (B) the time the Term Loan is repaid in full, to incur additional Indebtedness under this Credit Agreement in the form of an increase to the Term Loans (an “Incremental Term Loan”) by an aggregate amount of up to $5,250,000. The following terms and conditions shall apply to the Incremental Term Loan: (i) the Incremental Term Loan shall constitute Credit Party Obligations and will be secured and guaranteed with the other Credit Party Obligations on a pari passu basis, (ii) the Incremental Term Loan shall be entitled to the same voting rights as the existing Term Loans and shall be entitled to receive proceeds of prepayments on the same basis as the existing Term Loans, (iii) any such Incremental Term Loan shall be obtained from existing Lenders or from other banks, financial institutions or investment funds; provided that no existing Lender shall be required to participate in or fund any Incremental Term Loan, (iv) any such the Incremental Term Loan shall be in a minimum principal amount of $2,500,000, (v) the proceeds of any the Incremental Term Loan will be used for the purposes set forth in Section 3.11, (vi) the Borrower shall execute a Term Note in favor of any new Lender or any existing Lender requesting a Term Note who provides a portion of the Incremental Term Loan, (vii) the conditions to Extensions of Credit in Section 4.2 shall have been satisfied, (viii) the Administrative Agent shall have received an opinion or opinions (including, if reasonably requested by the Administrative Agent, local counsel opinions) of counsel for the Credit Parties, addressed to the Administrative Agent and the Lenders, in form and substance acceptable to the Administrative Agent, (ix) the Administrative Agent shall have received from the Borrower updated financial projections and an officer’s certificate, in each case in form and substance reasonably satisfactory to the Administrative Agent, demonstrating that, after giving effect to any such Incremental Term Loan on a Pro Forma Basis, the Borrower will be in compliance with the financial covenants set forth in Section 5.9. The Borrower may invite other banks, financial institutions and investment funds reasonably acceptable to the Administrative Agent to join this Credit Agreement as Lenders hereunder for the portion of such Incremental Term Loan not taken by existing Lenders, provided that such other banks, financial institutions and investment funds shall enter into such joinder agreements to give effect thereto as the Administrative Agent may reasonably request. The Administrative Agent is authorized to enter into, on behalf of the Lenders, any amendment to this Credit Agreement or any other Credit Document as may be necessary to incorporate the terms of any new Incremental Term Loan therein.
Equity Commitment (a) This letter agreement confirms the commitment of the Sponsor, at or immediately prior to the Effective Time, on the terms and subject to the conditions set forth herein, to purchase, or to cause the purchase of, equity interests of Holdco and to pay, or cause to be paid, to Holdco in immediately available funds an aggregate cash purchase price equal to $300,000,000 (such amount, subject to adjustment as set forth in Section 1(b), the “Equity Commitment”), which (i) Holdco hereby agrees to contribute to Parent, and (ii) will be used by Parent solely for the purpose of funding, to the extent necessary to fund, such portion of the Merger Consideration and such other amounts required to be paid by Parent pursuant to and in accordance with the Merger Agreement, together with related fees and expenses; provided that the Sponsor shall not, under any circumstances, be obligated to contribute more than the Equity Commitment to Holdco and the aggregate amount of liability of the Sponsor hereunder shall not exceed the amount of the Equity Commitment.
Equity Financing If there is an Equity Financing before the expiration or termination of this instrument, the Company will automatically issue to the Investor a number of shares of Safe Preferred Stock equal to the Purchase Amount divided by the Conversion Price. In connection with the issuance of Safe Preferred Stock by the Company to the Investor pursuant to this Section 1(a):
Tranche B Term Loans 3.1 Subject to the terms and conditions set forth herein (i) each existing Tranche B Term Loan Lender (collectively, the “Continuing Tranche B Term Loan Lenders”) that executes and delivers a Lender Addendum (Cashless Roll) in the form attached hereto as Exhibit A (a “Lender Addendum (Cashless Roll)”) agrees to continue all (or such lesser amount as notified to such Lender by the Administrative Agent prior to the Effective Date to give effect to any cash prepayment of the Tranche B Term Loans to be made by the Borrower on the Effective Date) of its existing Tranche B Term Loans outstanding immediately before giving effect to this Amendment as a Tranche B Term Loan on the Effective Date in a principal amount equal to such Continuing Tranche B Term Loan Lender’s Tranche B Term Loan Commitment (as defined in the Credit Agreement) and (ii) each Person (other than a Continuing Tranche B Term Loan Lender in its capacity as such) (collectively, the “Additional Tranche B Term Loan Lenders”) that executes and delivers a Lender Addendum (Additional Tranche B Term Loan Lender) in the form attached hereto as Exhibit B (a “Lender Addendum (Additional Tranche B Term Loan Lender)” and, together with a Lender Addendum (Cashless Roll), a “Lender Addendum”) agrees to take by assignment on the Effective Date from one or more Non-Consenting Lenders a principal amount of Tranche B Term Loans equal to such Additional Tranche B Term Loan Lender’s Tranche B Term Loan Commitment (as defined in the Credit Agreement). For purposes hereof, a Person shall become a party to the Credit Agreement as amended hereby and a Tranche B Term Loan Lender as of the Effective Date by executing and delivering to the Administrative Agent, on or prior to the Effective Date, a Lender Addendum (Additional Tranche B Term Loan Lender) in its capacity as a Tranche B Term Loan Lender. For the avoidance of doubt, the existing Term Loans of a Continuing Tranche B Term Loan Lender must be continued in whole and may not be continued in part unless otherwise notified by the Administrative Agent prior to the Effective Date to give effect to any cash prepayment of the Tranche B Term Loans to be made by the Borrower on the Effective Date.
Debt Financing (a) The Company shall use its reasonable best efforts to obtain, or cause to be obtained, $5,000,000,000 of Debt Financing on the terms and conditions set forth in the Debt Financing Commitment as promptly as reasonably practicable and shall not, without the Special Committee’s prior written consent, permit any amendment or modification to be made to, or any waiver of any provision under, the Debt Financing Commitment, if such amendment, modification or waiver (i) reduces (or could have the effect of reducing) the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Debt Financing) or (ii) imposes new or additional conditions or otherwise expands, amends or modifies any of the conditions to the Debt Financing, or otherwise expands, amends or modifies any other provision of the Debt Financing Commitment, in a manner that would reasonably be expected to (x) materially delay or prevent or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on the Closing Date or (y) adversely impact the ability of the Company and/or the Borrowers to enforce their respective rights against other parties to the Debt Financing Commitment or the definitive agreements with respect thereto, in each case, relating to the funding thereunder. For the avoidance of doubt, it is understood and agreed that the Company, without the consent of the Special Committee, may amend the Debt Financing in any manner the Company Board determines is in the best interests of the Company (including to add lenders, arrangers, bookrunners, agents, managers or similar entities that have not executed the Debt Financing Commitment and amend the economic and other arrangements with respect to the existing and additional lenders, arrangers, bookrunners, agents, managers or similar entities) so long as such amendment would not reasonably be expected to (x) materially delay or prevent or make less likely the funding of the Debt Financing (or satisfaction of the conditions to the Debt Financing) on or prior to the Closing Date, (y) adversely impact the ability of the Company and/or the Borrowers to enforce their respective rights against other parties to the Debt Financing Commitment or the definitive agreements with respect thereto, in each case, relating to the funding thereunder or (z) result in the net proceeds of the Debt Financing being made available to the Borrowers or any of their Affiliates, as applicable, in an amount which is not sufficient to satisfy the condition set forth in Section 5.01(e)(iii).
Incremental Facility (a) At any time during the Revolving Commitment Period, the Borrower may request from time to time from one or more existing Lenders or from other Eligible Assignees reasonably acceptable to the Administrative Agent, the Issuing Lender, the Swingline Lender and the Borrower (but subject to the conditions set forth in clause (b) below) that the Total Revolving Commitments be increased by an amount not to exceed the Available Revolving Increase Amount (each such increase, an “Increase”); provided that the Borrower may not request an Increase on more than three occasions during the Revolving Commitment Period. No Lender shall be obligated to increase its Revolving Commitments in connection with a proposed Increase. The Administrative Agent shall invite each Lender to provide a portion of the Increase ratably in accordance with its Revolving Percentage of each requested Increase (it being agreed that no Lender shall be obligated to provide an Increase and that any Lender may elect to participate in such Increase in an amount that is less than its Revolving Percentage of such requested Increase or more than its Revolving Percentage of such requested Increase if other Lenders have elected not to participate in any applicable requested Increase in accordance with their Revolving Percentage) and to the extent, 5 Business Days after receipt of invitation, sufficient Lenders do not agree to provide the full amount of such Increase, then the Administrative Agent may invite any prospective lender that satisfies the criteria of being an “Eligible Assignee” to become a Lender in connection with the proposed Increase. Any Increase shall be in an amount of at least $5,000,000 (or, if the Available Revolving Increase Amount is less than $5,000,000, such remaining Available Revolving Increase Amount) and integral multiples of $1,000,000 in excess thereof. Additionally, for the avoidance of doubt, it is understood and agreed that in no event shall the aggregate amount of the Increases to the Revolving Commitments exceed the Available Revolving Increase Amount during the term of the Agreement. Each request for an Increase delivered by the Borrower to the Administrative Agent shall set forth the amount and proposed terms of the Increase.
Initial Term Loans Subject to the terms and conditions hereof, each Lender holding an Initial Term Loan Commitment severally agrees to make, in Dollars, in a single draw on the Closing Date, one or more term loans (each, an “Initial Term Loan”) to the Borrower in an aggregate principal amount not to exceed the amount set forth opposite such Lender’s name in Schedule A under the heading “Initial Term Loan Commitment”, as such amount may be adjusted or reduced pursuant to the terms hereof, which Initial Term Loans:
Bridge Financing The Company shall use its reasonable best efforts to take, or cause to be taken, all actions and do or cause to be done, and to assist and cooperate with the other parties in doing, all things necessary, proper or advisable to obtain no later than October 30, 2004 a commitment letter (the “Bridge Financing Commitment Letter”) expiring no earlier than January 30, 2005, from a reputable financial institution in substantially the same form and substance as Exhibit F attached hereto, to provide financing on terms and conditions no less favorable than those described on Exhibit F attached hereto.
