|PERNIX THERAPEUTICS HOLDINGS, INC. filed this Form 8-K on 02/27/2019|
2.17 Incremental Loans.
(a) At any time during the period from and after the Closing Date through but excluding the final day of the Availability Period, the Borrower may (but subject to the conditions set forth in clauses (b) and (c) below), increase the principal amount of the Delayed Draw Commitments by an amount in the aggregate for all such increases in term loan commitments not to exceed $5,000,000 (each such increase, an “Incremental Facility” and the loans and commitments thereunder, “Incremental Loans” and “Incremental Commitments”). Incremental Facilities may be provided by any Lender (it being understood that no Lender shall be obligated to increase its Commitments or participate in any Incremental Facility) or, solely to the extent consented to by the Initial Lenders (or, if no Initial Lenders are party to this Agreement at such time, the Required Lenders) in their sole discretion, any prospective lender who is reasonably satisfactory to Agent and Borrower.
(b) Each of the following shall be conditions precedent to any Incremental Facility:
(i) Borrower has obtained the commitment of one or more Lenders (or, solely to the extent consented to by the Initial Lenders (or, if no Initial Lenders are party to this Agreement at such time, the Required Lenders) in their sole discretion, other prospective lenders) reasonably satisfactory to Agent and Borrower to provide the applicable Incremental Facility and any such Lenders (or prospective lenders) shall have executed and delivered to the Agent and the Borrower such documentation as may be reasonably required by the Agent to evidence and effectuate such Incremental Facility (an “Incremental Agreement” and the date of the effectiveness of such Incremental Agreement the “Incremental Date”), in form and substance satisfactory to the Initial Lenders (or, if no Initial Lenders are party to this Agreement at such time, the Required Lenders), to which such Lenders (or prospective lenders), Borrower, and Agent are party, and
(ii) each of the conditions precedent set forth in Section 3.4 and any other conditions mutually agreed to in the Incremental Agreement are satisfied.
On the Incremental Date of such Incremental Agreement, each Lender party thereto and not previously a party to this Agreement shall become a Lender for all purposes in connection with this Agreement. Any Incremental Agreement may, with the consent of Agent, Borrower and the Lenders or prospective lenders agreeing to the proposed Incremental Facility, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate to effectuate the provisions of this Section 2.17.
(c) The terms and provisions of the Loans made pursuant to any Incremental Facility shall be identical to the Delayed Draw Loans, except as otherwise mutually agreed in the Incremental Agreement.
(d) Unless otherwise specifically provided herein, all references in this Agreement and any other Loan Document to Loans shall be deemed, unless the context otherwise requires, to include Loans made pursuant to any Incremental Facility pursuant to this Section 2.17.
The Incremental Loans established pursuant to this Section 2.17 shall constitute Loans under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from any guarantees and the security interests created by the Loan Documents. Borrower shall take any actions reasonably required by Agent to ensure and demonstrate that the Liens and security interests granted by the Loan Documents continue to be perfected under the Code or otherwise after giving effect to the establishment of any such Incremental Facility.