Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the Borrower, the Administrative Agent and each Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.16. The Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment): (i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments; (ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment; (iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment; (iv) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects; (v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this Agreement; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and (vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrower. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.16, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Commitments shall be deemed to be Revolving Loans hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Green Plains Inc.), Credit Agreement (Green Plains Partners LP), Credit Agreement (Green Plains Partners LP)
Incremental Effective Date. The Commitments in respect of any Incremental Facility shall become Commitments shall (or in the case of an Incremental Revolving Increase to be effected provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowers, the Administrative Agent and (such consent not to be unreasonably withheld or delayed), each Incremental Lender making or providing such Incremental CommitmentCommitment and, in form and substance the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Incremental Joinder Agreement 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 Borrower Borrowers, to effect the provisions of this Section 2.13 (including in connection with an Incremental Revolving Increase, to reallocate the Outstanding Amount of Revolving Loans and L/C Obligations on a pro rata basis among the relevant Revolving Lenders). If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental CommitmentsFacilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Commitments Joinder Agreement shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):precedent:
(i) the Borrower conditions set forth in Section 4.02(b) shall be satisfied with respect to the effectiveness of the applicable Incremental Facility;
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent relating to the matters described above covering matters similar to those covered in the opinions delivered on the Closing Date with respect to such Loan Party in connection with any such Incremental Commitments;Facility; and
(iiiv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowerBorrowers, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Commitment;
Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to the incurrence of such Incremental Commitment;
(iv) Loans will not require the representations and warranties granting of each Loan Party contained in Article V Liens on the Collateral or any other material property of the Loan Parties to the holder of any Material Indebtedness (including pursuant to the equal and ratable lien requirements in certain of the Company’s existing senior unsecured notes). Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) if the proceeds of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall Loans are intended to be consistent with those applicable applied to any then-existing term loans incurred under this Agreementfinance an acquisition and the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any applicable event such Incremental Joinder Agreement may provide for (ATerm Facility shall be subject to no Default or Event of Default under Section 9.01(a) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and
(vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borroweri). Upon the effectiveness of any Incremental Commitment Facility pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental CommitmentsFacility, and (i) in any Incremental Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitments, deemed to be Loans hereunder and (ii) any Revolving Loans made under Incremental Revolving Commitments Increase shall be deemed to be Revolving Loans Commitments hereunder. Notwithstanding anything to the contrary contained herein, the Borrowers and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13.
Appears in 3 contracts
Samples: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International), Credit Agreement
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the Borrower, the Administrative Agent Borrower and each Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of them, and delivered to Administrative Agent, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provisions of this Section 2.12. Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject solely to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):Agent:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowerXxxxxxxx, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental CommitmentCommitments; provided that, if the proceeds of such Incremental Commitments are used primarily to fund a Limited Condition Transaction substantially concurrently upon the receipt thereof, the Lenders providing such Incremental Commitments may waive such condition (other than an Event of Default specified in Section 11.01(b) or 11.01(c) or an Event of Default specified in Section 11.01(g) or 11.01(h) with respect to Borrower);
(iv) the representations and warranties of each Loan Party contained set forth herein and in Article V or any the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Credit Documents shall be true and correct in all material respectsrespects on and as of such Incremental Effective Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such dates; provided, further, that, with respect to any Incremental Commitments the proceeds of which are being used in connection with a Limited Condition Transaction substantially concurrently upon the receipt thereof, the only representations and warranties the making of which shall be a condition to the effectiveness of such Incremental Commitments and the funding thereof shall be (except as otherwise agreed by Borrower and the Lenders providing such Incremental Commitments) (x) the Specified Representations and (y) if applicable, the representations and warranties contained in the acquisition agreement relating to such Permitted Acquisition or other Acquisition as are material to the interests of the Lenders, but only to the extent that Borrower or any of its Affiliates have the right to terminate its or their obligations under such acquisition agreement as a result of a breach of such representations and warranties in such acquisition agreement;
(v) without the written consent of the Required Tranche Lenders with respect to the Closing Date Revolving Facility, the final stated maturity of any New Revolving Commitments shall not be earlier than the then-existing Final Maturity Date with respect to the Closing Date Revolving Facility;
(vi) other than customary “bridge” facilities (so long as the long term debt into which any such customary “bridge” facility is to be converted satisfies the requirements of this clause (vi)), without the written consent of the Required Tranche Lenders with respect to the Term A Facility Loans, (x) the final stated maturity of any New Term Loans shall not be earlier than the then-existing Final Maturity Date with respect to the Term A Facility Loans, and (y) the Weighted Average Life to Maturity of any New Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Term A Facility Loans (without giving effect to the effect of prepayments made under any existing Tranche of Term Loans on amortization); it being understood that, subject to the foregoing, the amortization schedule applicable to such New Term Loans shall be determined by Borrower and the lenders of such New Term Loans and set forth in the applicable Incremental Joinder Agreement;
(vii) the yields and interest rate margins and, except as set forth in clauses (v) and (vi) of this Section 2.12(b), amortization schedule, applicable to any New Revolving Commitments and New Term Loans shall be as determined by Borrower and the holders of such Indebtedness;
(viii) except as set forth in Section 2.16(a2.12(a) and in clauses (i) - – (ivvii) of this Section 2.16(b2.12(b), the terms (excluding maturity, amortization, pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) of any New Revolving Commitments or New Term Loans shall be (as determined by Borrower in good faith) substantially similar to the terms of the Revolving Commitments or the Term A Facility Loans, as applicable, as existing on the date of incurrence of such New Revolving Commitments or New Term Loans except, to the extent such terms (x) at the option of Borrower (1) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Borrower in good faith) or (2) are not materially more restrictive to Borrower (as determined by Borrower in good faith), when taken as a whole, than the terms of the Term A Facility Loans or the Revolving Facility, as the case may be (except for covenants or other provisions applicable only to periods after the Final Maturity Date applicable to the Term A Facility Loans or the Revolving Facility, as applicable) (it being understood that any New Revolving Commitments or New Term Loans may provide for the ability to participate (i) with respect to any borrowings, voluntary prepayments or voluntary commitment reductions, on a pro rata basis, greater than pro rata basis or less than pro rata basis with the applicable Loans or facility and (ii) with respect to any mandatory prepayments, on a pro rata basis or less than pro rata basis with the applicable Loans (and on a greater than pro rata basis with respect to prepayments of any such New Revolving Commitments or New Term Loans with the proceeds of permitted refinancing Indebtedness), or (y) are (1) added to the Term A Facility Loans or Revolving Facility, as applicable, (2) applicable only after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness), or (3) otherwise reasonably satisfactory to Administrative Agent; provided that, in each of clauses (x) and (y) of this Section 2.12(b)(viii), if any financial maintenance covenant is added for the benefit of any New Term Loans or New Revolving Commitments that is more favorable to the Lenders under such facilities than the Financial Maintenance Covenant, then the Financial Maintenance Covenant shall be conformed to match such financial maintenance covenant (except to the extent such financial maintenance covenant applies only to periods after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness)) (it being understood that to the extent any financial maintenance covenant or other provision is added for the benefit of any such New Revolving Commitments or New Term Loans, no consent shall be required from Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant (together with any related “equity cure” provisions) or other provision is also added for the benefit of any corresponding existing facility);
(ix) any Incremental Term A Loans (and the corresponding Incremental Term A Loan Commitments) shall have terms substantially similar to the terms of the existing Term A Facility Loans (and the existing Term Loan Commitments); provided, however, that upfront fees or original issue discount may be paid to Lenders providing such Incremental Term A Loans as agreed by such Lenders and Borrower, and the conditions applicable to the incurrence of such Incremental Term A Loans (and the corresponding Incremental Term A Loan Commitments) shall be consistent with those applicable to any then-existing term loans incurred under as provided in this AgreementSection 2.12; provided provided, further, that any the applicable Incremental Joinder Agreement may shall make appropriate adjustments to Section 3.01(c) to address such Incremental Term A Loans, as applicable, including such adjustments as are necessary to provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date “fungibility” of such Incremental Term A Loans with respect to any then-the existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative AgentTerm A Facility Loans; and
(vix) any Incremental Existing Tranche Revolving Commitments shall have terms substantially identical to the terms of the Aggregate existing Revolving CommitmentsCommitments of the relevant Tranche hereunder; provided, however, that upfront fees may be paid to Lenders providing such Incremental Existing Tranche Revolving Commitments as agreed by such Lenders and Borrower, and the Borrowerconditions applicable to the incurrence of such Incremental Existing Tranche Revolving Commitments shall be as provided in this Section 2.12. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.12, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any New Revolving Loans shall be deemed to be additional Revolving Loans hereunder, (iii) any Revolving Loans made under Incremental Existing Tranche Revolving Commitments shall be deemed to be Revolving Loans of the relevant Tranche hereunder, (iv) any Incremental Term A Loans (to the extent funded) shall be deemed to be Term A Facility Loans hereunder and (v) any New Term Loans shall be deemed to be additional Term Loans hereunder. Notwithstanding anything to the contrary contained herein, Borrower, Collateral Agent and Administrative Agent may (and each of Collateral Agent and Administrative Agent are authorized by each other Secured Party to) execute such amendments and/or amendments and restatements of any Credit Documents as may be necessary or advisable to effectuate the provisions of this Section 2.12. Such amendments may include provisions allowing any Incremental Term A Loans or New Term Loans to be treated on the same basis as Term A Facility Loans in connection with declining prepayments. In connection with the incurrence of any Incremental Term A Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term A Facility Loans on the date such Incremental Term A Loans are incurred without the payment of any amounts under Section 5.05 or to include such Incremental Term A Loans ratably in each outstanding Borrowing of SOFR Loans under the Term A Facility. In connection with the incurrence of any Incremental Existing Tranche Revolving Commitments and related Revolving Loans, Borrower shall be permitted to terminate any Interest Period applicable to Revolving Loans under the applicable existing Tranche of Revolving Commitments without the payment of any amounts under Section 5.05 or to include such Revolving Loans ratably in each outstanding Borrowing of SOFR Loans under such Tranche of Revolving Commitments on the date such Revolving Loans are first incurred under such Incremental Existing Tranche Revolving Commitments. Notwithstanding anything to the contrary in this Section 2.12 or this Agreement, if the proceeds of any Incremental Commitments are being used to finance a Limited Condition Transaction or similar Investment permitted hereunder and the Incremental Lenders providing such Incremental Commitments so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality; provided, that the amount of any Incremental Commitments under the Incremental Incurrence-Based Amount determined at the time of signing of definitive documentation with respect to, or giving of notice with respect to, a Limited Condition Transaction may be recalculated, at the option of Borrower, at the time of funding.
Appears in 2 contracts
Samples: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Resorts LTD)
Incremental Effective Date. The Commitments in respect of any Incremental Facility shall become Commitments shall (or in the case of an Incremental Revolving Increase to be effected provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowers, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Incremental Joinder Agreement 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 Borrower Borrowers, to effect the provisions of this Section 2.13 (including in connection with an Incremental Revolving Increase, to reallocate the Outstanding Amount of Revolving Loans and L/C Obligations on a pro rata basis among the relevant Revolving Lenders). If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental CommitmentsFacilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Commitments Joinder Agreement shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):precedent:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment;
(iv) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as conditions set forth in Section 2.16(a4.02(b) and in clauses (i) - (iv) of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this Agreement; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date satisfied with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and
(vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrower. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.16, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any the applicable Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Commitments shall be deemed to be Revolving Loans hereunder.Facility;
Appears in 2 contracts
Samples: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International)
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the terms and provisions of any Incremental Commitments (and any Loans made in respect thereof)); subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Each Incremental Joinder Agreement 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 Agent, to effect the provisions of this Section 2.13. If the Incremental Commitments are provided in accordance with this Section 2.13, the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of As a condition precedent to any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):shall have been satisfied:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iiiA) no Event of Default shall have occurred and be continuing exists or would exist immediately after giving effect to such Incremental Commitment;
Commitments and (ivB) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) on and as of the effective date of such Incremental Commitments, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in Section 5.05 and Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 7.01(a) and (b);
(vii) except as set forth all fees required to be paid in Section 2.16(aconnection therewith at the time of such effectiveness shall have been paid;
(iii) and in clauses (i) - (iv) of this Section 2.16(b), the terms applicable Borrower shall deliver or cause to be delivered any Incremental Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this Agreement; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are legal opinions reasonably satisfactory to requested by the Administrative AgentAgent covering matters similar to those covered in the opinions delivered on the Closing Date; and
(viiv) any an Incremental Revolving Commitments Joinder Agreement shall have terms identical to been duly executed and delivered by the terms of Borrower, the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders Administrative Agent and each applicable Incremental Lender making or providing such Incremental Revolving Commitments as agreed by such Lenders and the BorrowerCommitment. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in any Incremental Term Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitmentsdeemed to be Term Loans hereunder, and (ii) any Revolving Increase Term Loans made under (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Commitments shall be deemed to be Revolving Loans Commitments hereunder and (iv) any Increase Revolving Commitments shall be deemed to be Revolving Commitments of the applicable Class hereunder. Notwithstanding anything to the contrary contained herein, the Borrower and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13. Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, if the proceeds of any Incremental Term Loan Commitments are intended to be applied to finance an acquisition and the Lenders or additional Lenders providing such Incremental Term Loan Commitments so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Loan Commitments shall be subject to there being no Default or Event of Default under Section 9.01(a) or (i) on the effective date thereof.
Appears in 2 contracts
Samples: Credit Agreement (Vici Properties Inc.), Credit Agreement (Vici Properties Inc.)
Incremental Effective Date. The Incremental Term Loan Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the Borrower, the Administrative Agent and each Lender making or providing such Incremental Term Loan Commitment, in form and substance reasonably satisfactory to each of them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the reasonable judgment of Administrative Agent, to effect the provisions of this Section 2.12. Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Term Loan Commitments and the final allocation of such Incremental Term Loan Commitments. The effectiveness of any such Incremental Term Loan Commitments shall be subject solely to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):Agent:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Term Loan Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent Agent, and each Lender and other Person making or providing such Incremental Term Loan Commitment;
(iii) no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental CommitmentTerm Loan Commitments; provided that, with respect to any Incremental Term Loans (and any related Incremental Term Loan Commitments) the proceeds of which are used primarily to fund a Limited Condition Transaction substantially concurrently upon the receipt thereof, the absence of an Event of Default (other than an Event of Default specified in Section 11.01(b) or 11.01(c) or an Event of Default specified in Section 11.01(g) or 11.01(h) with respect to Borrower) shall not constitute a condition to the effectiveness of such Incremental Term Loans (and any related Incremental Term Loan Commitments), or the funding of such Incremental Term Loans, unless otherwise agreed by Borrower and the Lenders providing such Incremental Term Loans or Incremental Term Loan Commitments;
(iv) the representations and warranties of each Loan Party contained set forth herein and in Article V or any the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Credit Documents shall be true and correct in all material respectsrespects on and as of such Incremental Effective Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such dates; and provided, further, that, with respect to any Incremental Term Loans and related Incremental Term Loan Commitments the proceeds of which are used primarily to fund a Limited Condition Transaction substantially concurrently upon the receipt thereof, the only representations and warranties the making of which shall be a condition to the effectiveness of such Incremental Term Loans and related Incremental Term Loan Commitments and the funding of such Incremental Term Loans shall be (except as otherwise agreed, as it pertains to additional representations and warranties by Borrower and the Lenders providing such Incremental Term Loans or Incremental Term Loan Commitments and set forth in the applicable Incremental Joinder Agreement) (x) the representations and warranties set forth in Sections 8.01(a) (but only with respect to Credit Parties), 8.04(a)(i), 8.04(a)(ii), 8.05 (but only as it relates to the Credit Documents), 8.09, 8.11(a), 8.11(b), 8.14 (but only as it relates to security interests that may be perfected solely through the filing of UCC financing statements and delivery of certificated securities collateral representing Equity Interests in United States Persons), 8.17, 8.22 and 8.23 (as it relates to the use of proceeds of the Loans on the Incremental Effective Date) and (y) the representations and warranties contained in the acquisition agreement relating to such Permitted Acquisition or other Acquisition as are material to the interests of the Lenders, but only to the extent that Borrower or any of its Affiliates have the right to terminate its or their obligations under such acquisition agreement as a result of a breach of such representations and warranties in such acquisition agreement;
(v) (A) without the written consent of (x) the Required Tranche Lenders with respect to any Tranches of then-existing Term Loans that have a maturity date after the proposed maturity date of any New Term Loans, the final stated maturity of any New Term Loans shall not be earlier than the then-existing Final Maturity Date with respect to any then-existing Tranche of Term Loans, and (y) the Required Tranche Lenders with respect to any Tranches of then-existing Term Loans that have a Weighted Average Life to Maturity that is longer than the proposed Weighted Average Life to Maturity of any New Term Loans, the Weighted Average Life to Maturity of any New Term Loans shall be no shorter than the Weighted Average Life to Maturity of any then-existing Tranche of Term Loans (without giving effect to the effect of prepayments made under any existing Tranche of Term Loans on amortization); it being understood that, subject to the foregoing, (i) the amortization schedule applicable to such New Term Loans shall be determined by Borrower and the lenders of such New Term Loans and (ii) in the case of Incremental Term Facility Loans, appropriate adjustments shall be made to the amortization schedule applicable to Term Facility Loans as are necessary to provide for the “fungibility” of such Incremental Term Facility Loans with the existing Term Facility Loans and (B) the New Term Loans shall (i) not be guaranteed by any Subsidiary other than Subsidiaries that are Guarantors and (ii) be secured by the Collateral on a pari passu basis with the Obligations and shall not be secured by any property or assets other than Collateral.
(vi) the yields and interest rate margins (in each case subject to Section 2.12(c)) and, except as set forth in clause (v) of this Section 2.12(b), amortization schedule, applicable to any New Term Loans shall be as determined by Borrower and the holders of such Indebtedness;
(vii) except as set forth in Section 2.16(a2.12(a) and in clauses (i) - through (ivvi) of this Section 2.16(b2.12(b), the terms (excluding maturity, amortization, pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) applicable to any Incremental New Term Loan Loans shall be (as determined by Borrower in good faith) substantially consistent with those applicable to any then-existing term loans incurred under this AgreementTerm Facility Loans as existing on the date of incurrence of such New Term Loans except, to the extent such terms (x) at the option of Borrower (1) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Borrower in good faith); provided that, if any financial maintenance covenant is added for the benefit of any New Term Loans, such financial maintenance covenant shall also be applicable to the Term Facility Loans (except to the extent such financial maintenance covenant applies only to periods after the Final Maturity Date applicable to the Term Facility Loans) or (2) are not materially more restrictive to Borrower (as determined by Borrower in good faith), when taken as a whole, than the terms of the Term Facility Loans (except for covenants or other provisions applicable only to periods after the Final Maturity Date applicable to the Term Facility Loans) (it being understood that any applicable Incremental Joinder Agreement New Term Loans may provide for the ability to participate (Ai) with respect to any additional borrowings, voluntary prepayments or more voluntary commitment reductions, on a pro rata basis or less restrictive covenants that than pro rata basis with the applicable Loans or facility and (ii) with respect to any mandatory prepayments, on a pro rata basis or less than pro rata basis with the applicable Loans (and on a greater than pro rata basis with respect to prepayments of any New Term Loans with the proceeds of permitted refinancing Indebtedness), or (y) are (1) added to the Term Facility Loans, (2) applicable only after the then latest Final Maturity Date with respect applicable to any then-existing tranche of term loans incurred under this Agreement the Term Facility Loans, or (B3) any other terms that are otherwise reasonably satisfactory to Administrative Agent (it being understood that to the extent any financial maintenance covenant is added for the benefit of any such New Term Loans, no consent shall be required from Administrative Agent; andAgent or any of the Lenders to the extent that such financial maintenance covenant (together with any related “equity cure” provisions) is also added for the benefit of any corresponding Term Facility Loans);
(viviii) any Incremental Revolving Commitments Term Facility Loans (and the corresponding Incremental Term Facility Loan Commitments) shall have terms identical to the terms of the Aggregate Revolving existing Term Facility Loans (and the existing Term Facility Loan Commitments); provided, however, that upfront fees or original issue discount may be paid to Lenders providing such Incremental Revolving Commitments Term Facility Loans as agreed by such Lenders and Borrower, and the Borrowerconditions applicable to the incurrence of such Incremental Term Facility Loans (and the corresponding Incremental Term Facility Loan Commitments) shall be as provided in this Section 2.12. Upon the effectiveness of any Incremental Term Loan Commitment pursuant to this Section 2.162.12, any Person providing an Incremental Term Loan Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Term Loan Commitments, and (i) in any Incremental Term Facility Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitments, deemed to be Term Facility Loans hereunder and (ii) any Revolving New Term Loans made under Incremental Revolving Commitments shall be deemed to be Revolving additional Term Loans hereunder. Notwithstanding anything to the contrary contained herein, Borrower, Collateral Agent, and Administrative Agent may (and each of Collateral Agent and Administrative Agent are authorized by each other Secured Party to) execute such amendments and/or amendments and restatements of any Credit Documents as may be necessary or advisable to effectuate the provisions of this Section 2.12. Such amendments may include provisions allowing any New Term Loans to be treated on the same basis as Term Facility Loans. In connection with the incurrence of any Incremental Term Facility Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term Facility Loans on the date such Incremental Term Facility Loans are incurred.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Incremental Effective Date. The Commitments in respect of any Incremental Facility shall become Commitments shall (or in the case of an Incremental Revolving Increase to be effected provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowers, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Incremental Joinder Agreement 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 Borrower Borrowers, to effect the provisions of this Section 2.13 (including in connection with an Incremental Revolving Increase, to reallocate the Outstanding Amount of Revolving Loans and L/C Obligations on a pro rata basis among the relevant Revolving Lenders). If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental CommitmentsFacilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Commitments Joinder Agreement shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):precedent:
(i) the Borrower conditions set forth in Section 4.02(b) shall be satisfied with respect to the effectiveness of the applicable Incremental Facility;
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent relating to the matters described above covering matters similar to those covered in the opinions delivered on the Closing Date (and, if such Incremental Facility is incurred on or following a Collateral Trigger Event, those covered in the collateral-related opinions delivered pursuant to Section 6.09) with respect to such Guarantor in connection with any such Incremental Commitments;Facility; and
(iiiv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowerBorrowers, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Commitment;
Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness (iiii) no Event of Default shall have has occurred and be is continuing or would exist immediately result therefrom and (ii) if such date of effectiveness is on or after giving effect to such Incremental Commitment;
the date of occurrence of a Collateral Trigger Event, (ivx) the representations Incremental Facilities and warranties the Loans thereunder are secured by the Collateral, and (y) the incurrence of each Loan Party contained in Article V such Loans will not require the granting of Liens on the Collateral or any other material property of the Loan Parties to the holder of any Material Indebtedness (including pursuant to the equal and ratable lien requirements in certain of the Company’s existing senior unsecured notes). Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) if the proceeds of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall Loans are intended to be consistent with those applicable applied to any then-existing term loans incurred under this Agreementfinance an acquisition and the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any applicable event such Incremental Joinder Agreement may provide for (ATerm Facility shall be subject to no Default or Event of Default under Sections 9.01(a) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and
(vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borroweri). Upon the effectiveness of any Incremental Commitment Facility pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental CommitmentsFacility, and (i) in any Incremental Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitments, deemed to be Loans hereunder and (ii) any Revolving Loans made under Incremental Revolving Commitments Increase shall be deemed to be Revolving Loans Commitments hereunder. Notwithstanding anything to the contrary contained herein, the Borrowers and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13.
Appears in 1 contract
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the Borrower, the Administrative Agent Borrower and each Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of them, and delivered to Administrative Agent, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provisions of this Section 2.12. Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject solely to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):Agent:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Default or Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental CommitmentCommitments; provided that, if the proceeds of such Incremental Commitments are used primarily to fund a Limited Condition Transaction substantially concurrently upon the receipt thereof, the Lenders providing such Incremental Commitments may waive such condition (other than an Event of Default specified in Section 11.01(b) or 11.01(c) or an Event of Default specified in Section 11.01(g) or 11.01(h) with respect to Borrower);
(iv) the representations and warranties of each Loan Party contained set forth herein and in Article V or any the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Credit Documents shall be true and correct in all material respectsrespects on and as of such Incremental Effective Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such dates; provided, further, that, with respect to any Incremental Commitments the proceeds of which are being used in connection with a Limited Condition Transaction substantially concurrently upon the receipt thereof, the only representations and warranties the making of which shall be a condition to the effectiveness of such Incremental Commitments and the funding thereof shall be (except as otherwise agreed by Borrower and the Lenders providing such Incremental Commitments) (x) the Specified Representations and (y) if applicable, the representations and warranties contained in the acquisition agreement relating to such Permitted Acquisition or other Acquisition as are material to the interests of the Lenders, but only to the extent that Borrower or any of its Affiliates have the right to terminate its or their obligations under such acquisition agreement as a result of a breach of such representations and warranties in such acquisition agreement;
(v) without the written consent of the Required Tranche Lenders with respect to the Closing Date Revolving Facility, the final stated maturity of any New Revolving Commitments shall not be earlier than the then-existing Final Maturity Date with respect to the Closing Date Revolving Facility;
(vi) other than customary “bridge” facilities (so long as the long term debt into which any such customary “bridge” facility is to be converted satisfies the requirements of this clause (vi)), without the written consent of the Required Tranche Lenders with respect to the Term A Facility Loans, (x) the final stated maturity of any New Term Loans shall not be earlier than the then-existing Final Maturity Date with respect to the Term A Facility Loans, and (y) the Weighted Average Life to Maturity of any New Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Term A Facility Loans (without giving effect to the effect of prepayments made under any existing Tranche of Term Loans on amortization); it being understood that, subject to the foregoing, the amortization schedule applicable to such New Term Loans shall be determined by Borrower and the lenders of such New Term Loans and set forth in the applicable Incremental Joinder Agreement;
(vii) the yields and interest rate margins and, except as set forth in clauses (v) and (vi) of this Section 2.12(b), amortization schedule, applicable to any New Revolving Commitments and New Term Loans shall be as determined by Borrower and the holders of such Indebtedness;
(viii) except as set forth in Section 2.16(a2.12(a) and in clauses (i) - – (ivvii) of this Section 2.16(b2.12(b), the terms (excluding maturity, amortization, pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) of any New Revolving Commitments or New Term Loans shall be (as determined by Borrower in good faith) substantially similar to the terms of the Revolving Commitments or the Term A Facility Loans, as applicable, as existing on the date of incurrence of such New Revolving Commitments or New Term Loans except, to the extent such terms (x) at the option of Borrower (1) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Borrower in good faith) or (2) are not materially more restrictive to Borrower (as determined by Borrower in good faith), when taken as a whole, than the terms of the Term A Facility Loans or the Revolving Facility, as the case may be (except for covenants or other provisions applicable only to periods after the Final Maturity Date applicable to the Term A Facility Loans or the Revolving Facility, as applicable) (it being understood that any New Revolving Commitments or New Term Loans may provide for the ability to participate (i) with respect to any borrowings, voluntary prepayments or voluntary commitment reductions, on a pro rata basis, greater than pro rata basis or less than pro rata basis with the applicable Loans or facility and (ii) with respect to any mandatory prepayments, on a pro rata basis or less than pro rata basis with the applicable Loans (and on a greater than pro rata basis with respect to prepayments of any such New Revolving Commitments or New Term Loans with the proceeds of permitted refinancing Indebtedness), or (y) are (1) added to the Term A Facility Loans or Revolving Facility, as applicable, (2) applicable only after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness), or (3) otherwise reasonably satisfactory to Administrative Agent; provided that, in each of clauses (x) and (y) of this Section 2.12(b)(viii), if any financial maintenance covenant is added for the benefit of any New Term Loans or New Revolving Commitments that is more favorable to the Lenders under such facilities than the Financial Maintenance Covenant, then the Financial Maintenance Covenant shall be conformed to match such financial maintenance covenant (except to the extent such financial maintenance covenant applies only to periods after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness)) (it being understood that to the extent any financial maintenance covenant or other provision is added for the benefit of any such New Revolving Commitments or New Term Loans, no consent shall be required from Administrative Agent or any of the Lenders to the extent that such financial maintenance covenant (together with any related “equity cure” provisions) or other provision is also added for the benefit of any corresponding existing facility);
(ix) any Incremental Term A Loans (and the corresponding Incremental Term A Loan Commitments) shall have terms substantially similar to the terms of the existing Term A Facility Loans (and the existing Term Loan Commitments); provided, however, that upfront fees or original issue discount may be paid to Lenders providing such Incremental Term A Loans as agreed by such Lenders and Borrower, and the conditions applicable to the incurrence of such Incremental Term A Loans (and the corresponding Incremental Term A Loan Commitments) shall be consistent with those applicable to any then-existing term loans incurred under as provided in this AgreementSection 2.12; provided provided, further, that any the applicable Incremental Joinder Agreement may shall make appropriate adjustments to Section 3.01(c) to address such Incremental Term A Loans, as applicable, including such adjustments as are necessary to provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date “fungibility” of such Incremental Term A Loans with respect to any then-the existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative AgentTerm A Facility Loans; and
(vix) any Incremental Existing Tranche Revolving Commitments shall have terms substantially identical to the terms of the Aggregate existing Revolving CommitmentsCommitments of the relevant Tranche hereunder; provided, however, that upfront fees may be paid to Lenders providing such Incremental Existing Tranche Revolving Commitments as agreed by such Lenders and Borrower, and the Borrowerconditions applicable to the incurrence of such Incremental Existing Tranche Revolving Commitments shall be as provided in this Section 2.12. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.12, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any New Revolving Loans shall be deemed to be additional Revolving Loans hereunder, (iii) any Revolving Loans made under Incremental Existing Tranche Revolving Commitments shall be deemed to be Revolving Loans of the relevant Tranche hereunder, (iv) any Incremental Term A Loans (to the extent funded) shall be deemed to be Term A Facility Loans hereunder and (v) any New Term Loans shall be deemed to be additional Term Loans hereunder. Notwithstanding anything to the contrary contained herein, Borrower, Collateral Agent and Administrative Agent may (and each of Collateral Agent and Administrative Agent are authorized by each other Secured Party to) execute such amendments and/or amendments and restatements of any Credit Documents as may be necessary or advisable to effectuate the provisions of this Section 2.12. Such amendments may include provisions allowing any Incremental Term A Loans or New Term Loans to be treated on the same basis as Term A Facility Loans in connection with declining prepayments. In connection with the incurrence of any Incremental Term A Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term A Facility Loans on the date such Incremental Term A Loans are incurred without the payment of any amounts under Section 5.05 or to include such Incremental Term A Loans ratably in each outstanding Borrowing of LIBOR Loans under the Term A Facility. In connection with the incurrence of any Incremental Existing Tranche Revolving Commitments and related Revolving Loans, Borrower shall be permitted to terminate any Interest Period applicable to Revolving Loans under the applicable existing Tranche of Revolving Commitments without the payment of any amounts under Section 5.05 or to include such Revolving Loans ratably in each outstanding Borrowing of LIBOR Loans under such Tranche of Revolving Commitments on the date such Revolving Loans are first incurred under such Incremental Existing Tranche Revolving Commitments. Notwithstanding anything to the contrary in this Section 2.12 or this Agreement, if the proceeds of any Incremental Commitments are being used to finance a Limited Condition Transaction or similar Investment permitted hereunder and the Incremental Lenders providing such Incremental Commitments so agree, the availability thereof shall be subject to customary “SunGard” or “certain funds” conditionality; provided, that the amount of any Incremental Commitments under the Incremental Incurrence-Based Amount determined at the time of signing of definitive documentation with respect to, or giving of notice with respect to, a Limited Condition Transaction may be recalculated, at the option of Borrower, at the time of funding.
Appears in 1 contract
Samples: Credit Agreement (Wynn Resorts LTD)
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the terms and provisions of any Incremental Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Each Incremental Joinder Agreement 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 Agent, to effect the provisions of this Section 2.13. If the Incremental Commitments are provided in accordance with this Section 2.13, the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of As a condition precedent to any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):shall have been satisfied:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iiiA) no Event of Default shall have occurred and be continuing exists or would exist immediately after giving effect to such Incremental Commitment;
Commitments and (ivB) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) on and as of the effective date of such Incremental Commitments, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in Section 5.05 and Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 7.01(a) and (b);
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrower shall deliver or cause to be delivered any legal opinions reasonably requested by the Administrative Agent covering matters similar to those covered in the opinions delivered on the Closing Date;
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Commitment; and
(v) except as after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the use of proceeds thereof (including any related acquisition or Investment permitted hereunder), the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 2.16(a8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such Incremental Revolving Commitments or Incremental Term Loans (including the proviso to Section 8.11(b) if applicable) (provided that, for the purposes of such calculation, (A) any such Incremental Revolving Commitments shall be deemed to be fully drawn and in clauses (iB) - (iv) the cash proceeds of this Section 2.16(bsuch Incremental Revolving Commitments and Incremental Term Loans shall not be taken into account for any cash netting), whether or not the terms applicable to any Incremental Revolving Facility, the Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this AgreementA Facility or the Fourth Amendment Increase Term A Facility is then in effect; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred ratio calculated under this Agreement or clause (Bv) any other terms that are reasonably satisfactory shall be calculated subject to Section 1.07 to the Administrative Agent; extent applicable and
(vi) any Incremental Revolving Commitments shall have terms identical to , if the terms proceeds of the Aggregate Revolving Commitments; providedrelevant Incremental Commitments will be applied to finance a Limited Condition Transaction, however, that upfront fees may compliance with the financial covenants in Section 8.11 will be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrowerdetermined in accordance with Section 1.08. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in any Incremental Term Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitmentsdeemed to be Term Loans hereunder, and (ii) any Revolving Increase Term Loans made under (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Commitments shall be deemed to be Revolving Loans Commitments hereunder and (iv) any Increase Revolving Commitments shall be deemed to be Revolving Commitments of the applicable Class hereunder. Notwithstanding anything to the contrary contained herein, the Borrower and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13. Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, if the proceeds of any Incremental Term Loan Commitments are intended to be applied to finance an acquisition and the Lenders or additional Lenders providing such Incremental Term Loan Commitments so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Loan Commitments shall be subject to there being no Default or Event of Default under Section 9.01(a) or (i) on the effective date thereof.
Appears in 1 contract
Samples: Credit Agreement (MGM Growth Properties Operating Partnership LP)
Incremental Effective Date. The Commitments in respect of any Incremental Facility shall become Commitments shall (or in the case of an Incremental Revolving Increase to be effected provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowers, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Incremental Joinder Agreement 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 Borrower Borrowers, to effect the provisions of this Section 2.13 (including in connection with an Incremental Revolving Increase, to reallocate the Outstanding Amount of Revolving Loans and L/C Obligations on a pro rata basis among the relevant Revolving Lenders). If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental CommitmentsFacilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Commitments Joinder Agreement shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):precedent:
(i) the Borrower conditions set forth in Section 4.02(b) shall be satisfied with respect to the effectiveness of the applicable Incremental Facility;
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent relating to the matters described above covering matters similar to those covered in the opinions delivered on the Closing Date (and, if such Incremental Facility is incurred on or following the First Amendment Effective Date, those covered in the collateral-related opinions delivered on the First Amendment Effective Date) with respect to such Loan Party in connection with any such Incremental Commitments;Facility; and
(iiiv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowerBorrowers, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Commitment;
Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness (i) no Event of Default has occurred and is continuing or would result therefrom, (ii) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to the incurrence of such Incremental Commitment;
(iv) Loans will not require the representations and warranties granting of each Loan Party contained in Article V Liens on the Collateral or any other material property of the Loan Parties to the holder of any Material Indebtedness (including pursuant to the equal and ratable lien requirements in certain of the Company’s existing senior unsecured notes). Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) if the proceeds of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall Loans are intended to be consistent with those applicable applied to any then-existing term loans incurred under this Agreementfinance an acquisition and the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any applicable event such Incremental Joinder Agreement may provide for (ATerm Facility shall be subject to no Default or Event of Default under Sections 9.01(a) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and
(vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borroweri). Upon the effectiveness of any Incremental Commitment Facility pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental CommitmentsFacility, and (i) in any Incremental Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitments, deemed to be Loans hereunder and (ii) any Revolving Loans made under Incremental Revolving Commitments Increase shall be deemed to be Revolving Loans Commitments hereunder. Notwithstanding anything to the contrary contained herein, the Borrowers and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13.
Appears in 1 contract
Incremental Effective Date. The Incremental Term Commitments and the Incremental Revolving Commitments, and the obligations of the Lenders party hereto to make Loans and other extensions of credit thereunder, shall be effected by a joinder agreement to this Agreement not become effective until the date (the “Incremental Joinder AgreementEffective Date”) executed on which the each of the following conditions shall have been satisfied:
(i) The representations and warranties set forth in Section 8 hereof shall be true and correct on and as of the Incremental Effective Date, and the Administrative Agent shall have received a certificate, dated the Incremental Effective Date and signed by a Financial Officer of each of Holdings and the Borrower, certifying as to the foregoing and providing reasonably detailed calculations with respect to the representation and warranty set forth in Section 8(d) hereof, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(ii) The Acquisition shall have been consummated, or substantially concurrently with the Incremental Effective Date shall be consummated, pursuant to and on the terms set forth in the Purchase Agreement, and the Administrative Agent shall have received a certificate, dated the Incremental Effective Date and signed by a Financial Officer of each Lender making or providing of Holdings and the Borrower, (A) certifying that all the requirements set forth in the definition “Permitted Acquisition” in the Credit Agreement shall have been satisfied with respect to the Acquisition, together with reasonably detailed calculations demonstrating satisfaction of the requirement set forth in clause (d)(ii) of such definition, and (B) attaching a copy of the Purchase Agreement and certifying such copy as being complete and correct, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(iii) The Administrative Agent shall have received a certificate, dated the Incremental CommitmentEffective Date and signed by a Financial Officer of Holdings, as to the solvency of the Loan Parties on a consolidated basis after giving effect to the Transactions, in form and substance reasonably satisfactory to each of them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.16. Administrative Agent.
(iv) The Administrative Agent and the Borrower shall determine the effective date have received a favorable written opinion (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject addressed to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders party hereto and other Persons making or providing such dated the Incremental Commitment):
Effective Date) of each of (iA) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel for Holdings and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment;
(iv) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this Agreement; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that local counsel for Holdings and the Borrower in each jurisdiction where a Loan Party is organized, and the laws of which are not covered by the opinion letter referred to in clause (B) above, in each case in form and substance reasonably satisfactory to the Administrative Agent; and.
(v) The Administrative Agent shall have received such board resolutions and secretary and officer certificates and other documents as the Administrative Agent may reasonably request relating to the organization, existence and good standing of each Loan Party, the authorization of the Transactions and any other legal matters relating to the Loan Parties and the Transactions, in each case in form and substance reasonably satisfactory to the Administrative Agent.
(vi) any Each Loan Party shall have entered into a Reaffirmation Agreement, in form and substance reasonably satisfactory to the Administrative Agent, pursuant to which it confirms that it consents to this Agreement and the Incremental Term Commitments and the Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrower. Upon the effectiveness of any Incremental Commitment established pursuant to this Section 2.16Agreement, any Person providing an Incremental Commitment and the extension of credit thereunder, and that was not a Lender hereunder immediately prior the Security Documents to which it is party will continue to apply in respect of the Credit Agreement, as amended hereby, and the Obligations of such time shall become a Lender hereunder. Loan Party.
(vii) The Administrative Agent and the Incremental Facilities Arranger shall promptly notify each Lender as have received payment, in immediately available funds, from the Borrower of all fees, expenses and other amounts due and payable to the effectiveness of any Administrative Agent and the Incremental CommitmentsFacilities Arranger on or prior to the Incremental Effective Date, including pursuant to Section 7 hereof and the Credit Agreement (i) in including Section 2.16 thereof, if applicable). Notwithstanding the case of Incremental Revolving Commitmentsforegoing, the Aggregate Revolving Commitments underprovisions of Sections 2, 3, 4 and for all purpose of this Agreement6 hereof shall have no force or effect if the Incremental Effective Date shall not have occurred on or prior to May 31, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Commitments shall be deemed to be Revolving Loans hereunder2013.
Appears in 1 contract
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the Borrower, the Administrative Agent and each Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.16. The Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment;
(iv) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this Agreement; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and
(vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrower. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.16, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Commitments shall be deemed to be Revolving Loans hereunder.or
Appears in 1 contract
Samples: Credit Agreement
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the BorrowerBorrowers, the Administrative Agent and each Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.16. The Administrative Agent and the Borrower Borrowers shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the BorrowerBorrowers, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):
(i) the Borrower Borrowers shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowerBorrowers, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental CommitmentCommitment (provided that, to the extent the proceeds of an Incremental Term Loan are being used to finance a Permitted Acquisition or other Investment permitted by Section 7.02, in each case, whose consummation is not conditioned on the availability of, or on obtaining, third party financing, and so long as the Lenders providing such Incremental Term Loan shall agree, the foregoing condition shall be limited to Events of Default pursuant to Sections 8.01(a), (f) and (g));
(iv) the representations and warranties of each Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, to the extent such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) on and as of the Incremental Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all material respects (or, if such representation or warranty is qualified by materiality or Material Adverse Effect, it shall be true and correct in all respects) as of such earlier date (provided that, to the extent the proceeds of an Incremental Term Loan are being used to finance a Permitted Acquisition or other Investment permitted by Section 7.02, in each case, whose consummation is not conditioned on the availability of, or on obtaining, third party financing, and so long as the Lenders providing such Incremental Term Loan shall agree, the foregoing condition shall be limited to customary specified representations with respect to the Loan Parties and their Subsidiaries and customary acquisition agreement representations with respect to the Person or assets to be acquired);
(vA) the final stated maturity of any Incremental Term Loan shall not be earlier than the then-existing Maturity Date with respect to any then-exiting tranche of term loans incurred under this Agreement, and (B) the Weighted Average Life to Maturity of any Incremental Term Loan shall be no shorter than the Weighted Average Life to Maturity of any then-existing tranche of term loans incurred under this Agreement;
(vi) the yields and interest rate margins applicable to any Incremental Term Loan shall be as determined by the Borrowers and the holders of such Indebtedness provided, however, that in the case of any Incremental Term Loan, if the All-In Yield applicable to such Incremental Term Loan is greater than the All-In Yield payable pursuant to the terms of this Agreement as amended through the date of such calculation with respect to the Term Loan plus 50 basis points per annum, then the interest rate with respect to the Term Loan shall be increased (pursuant to the applicable Incremental Joinder Agreement) so as to cause the then applicable All-In Yield under this Agreement on the Term Loan to equal the All-In Yield then applicable to the Incremental Term Loan minus 50 basis points per annum; provided, further, that any increase in the All-In Yield required pursuant to this Section 2.16(b) resulting from the application of any interest rate floor on any Incremental Term Loan will be effected solely through the establishment or increase of a floor in respect of the Term Loan, as the case may be;
(vii) except as set forth in Section 2.16(a) and in clauses (i) - (ivvi) of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this Agreement; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and;
(viviii) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the BorrowerBorrowers; and
(ix) any Incremental Term Loan that is an increase to the existing Term Loan shall have terms identical to the terms of the Term Loan; provided, however, that upfront fees may be paid to Lenders providing such Incremental Term Loan Commitments as agreed by such Lenders and the Borrowers. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.16, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Commitments shall be deemed to be Revolving Loans hereunder.
Appears in 1 contract
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the terms and provisions of any Incremental Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Each Incremental Joinder Agreement 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 Agent, to effect the provisions of this Section 2.13. If the Incremental Commitments are provided in accordance with this Section 2.13, the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of As a condition precedent to any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):shall have been satisfied:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iiiA) no Event of Default shall have occurred and be continuing exists or would exist immediately after giving effect to such Incremental Commitment;
Commitments and (ivB) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) on and as of the effective date of such Incremental Commitments, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in Section 5.05 and Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 7.01(a) and (b);
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrower shall deliver or cause to be delivered any legal opinions reasonably requested by the Administrative Agent covering matters similar to those covered in the opinions delivered on the Closing Date;
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Commitment; and
(v) except as after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the use of proceeds thereof (including any related acquisition or Investment permitted hereunder), the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 2.16(a8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such Incremental Revolving Commitments or Incremental Term Loans (including the proviso to Section 8.11(b) if applicable) (provided that, for the purposes of such calculation, (A) any such Incremental Revolving Commitments shall be deemed to be fully drawn and in clauses (iB) - (iv) the cash proceeds of this Section 2.16(bsuch Incremental Revolving Commitments and Incremental Term Loans shall not be taken into account for any cash netting), whether or not the terms applicable to any Incremental Revolving Facility, the Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this AgreementA Facility or the Fourth Amendment Increase Term A Facility is then in effect; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred ratio calculated under this Agreement or clause (Bv) any other terms that are reasonably satisfactory shall be calculated subject to Section 1.07 to the Administrative Agent; extent applicable and
(vi) any Incremental Revolving Commitments shall have terms identical to , if the terms proceeds of the Aggregate Revolving Commitments; providedrelevant Incremental Commitments will be applied to finance a Limited Condition Transaction, however, that upfront fees may compliance with the financial covenants in Section 8.11 will be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrowerdetermined in accordance with Section 1.08. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in any Incremental Term Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitmentsdeemed to be Term Loans hereunder, and (ii) any Revolving Increase Term Loans made under (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Commitments shall be deemed to be Revolving Loans Commitments hereunder and (ivii) any Increase Revolving Commitments shall be deemed to be Revolving Commitments of the applicable Class hereunder. Notwithstanding anything to the contrary contained herein, the Borrower and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13. Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, if the proceeds of any Incremental Term Loan Commitments are intended to be applied to finance an acquisition and the Lenders or additional Lenders providing such Incremental Term Loan Commitments so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Loan Commitments shall be subject to there being no Default or Event of Default under Section 9.01(a) or (i) on the effective date thereof.
Appears in 1 contract
Samples: Credit Agreement (MGM Growth Properties Operating Partnership LP)
Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the terms and provisions of any Incremental Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Each Incremental Joinder Agreement 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 Agent, to effect the provisions of this Section 2.13. If the Incremental Commitments are provided in accordance with this Section 2.13, the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of As a condition precedent to any such Incremental Commitments shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):shall have been satisfied:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iiiA) no Event of Default shall have occurred and be continuing exists or would exist immediately after giving effect to such Incremental Commitment;
Commitments and (ivB) the representations and warranties of the Borrower and each other Loan Party contained in Article V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) on and as of the effective date of such Incremental Commitments, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) as of such earlier date, and except that for purposes of this Section 2.13, the representations and warranties contained in Section 5.05 and Section 5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to Sections 7.01(a) and (b);
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrower shall deliver or cause to be delivered any legal opinions reasonably requested by the Administrative Agent covering matters similar to those covered in the opinions delivered on the Closing Date;
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Commitment; and
(v) except as after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the use of proceeds thereof (including any related acquisition or Investment permitted hereunder), the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 2.16(a8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such Incremental Revolving Commitments or Incremental Term Loans (including the proviso to Section 8.11(b) if applicable) (provided that, for the purposes of such calculation, (A) any such Incremental Revolving Commitments shall be deemed to be fully drawn and in clauses (iB) - (iv) the cash proceeds of this Section 2.16(bsuch Incremental Revolving Commitments and Incremental Term Loans shall not be taken into account for any cash netting), whether or not the terms applicable to any Incremental Revolving Facility or the Term Loan shall be consistent with those applicable to any then-existing term loans incurred under this AgreementA Facility is then in effect; provided that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred ratio calculated under this Agreement or clause (Bv) any other terms that are reasonably satisfactory shall be calculated subject to Section 1.07 to the Administrative Agent; extent applicable and
(vi) any Incremental Revolving Commitments shall have terms identical to , if the terms proceeds of the Aggregate Revolving Commitments; providedrelevant Incremental Commitments will be applied to finance a Limited Condition Transaction, however, that upfront fees may compliance with the financial covenants in Section 8.11 will be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrowerdetermined in accordance with Section 1.08. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in any Incremental Term Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitmentsdeemed to be Term Loans hereunder, and (ii) any Revolving Increase Term Loans made under (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Commitments shall be deemed to be Revolving Loans Commitments hereunder and (iv) any Increase Revolving Commitments shall be deemed to be Revolving Commitments of the applicable Class hereunder. Notwithstanding anything to the contrary contained herein, the Borrower and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13. Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, if the proceeds of any Incremental Term Loan Commitments are intended to be applied to finance an acquisition and the Lenders or additional Lenders providing such Incremental Term Loan Commitments so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Loan Commitments shall be subject to there being no Default or Event of Default under Section 9.01(a) or (i) on the effective date thereof.
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Incremental Effective Date. The Commitments in respect of any Incremental Facility shall become Commitments shall (or in the case of an Incremental Revolving Increase to be effected provided by an existing Lender with a Revolving Commitment, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowerBorrowers, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of themthem (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.13. The Incremental Joinder Agreement 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 Borrower Borrowers, to effect the provisions of this Section 2.13 (including in connection with an Incremental Revolving Increase, to reallocate the Outstanding Amount of Revolving Loans and L/C Obligations on a pro rata basis among the relevant Revolving Lenders). If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental CommitmentsFacilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Commitments Joinder Agreement shall be subject to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrower, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):precedent:
(i) the Borrower conditions set forth in Section 4.02(b) shall be satisfied with respect to the effectiveness of the applicable Incremental Facility;
(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;
(iii) the Borrowers shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent relating to the matters described above covering matters similar to those covered in the opinions delivered on the Closing Date (and, if such Incremental Facility is incurred on or following a Collateral Trigger Eventthe First Amendment Effective Date, those covered in the collateral-related opinions delivered pursuant to Section 6.09on the First Amendment Effective Date) with respect to such GuarantorLoan Party in connection with any such Incremental Commitments;Facility; and
(iiiv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowerBorrowers, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Commitment;
Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness (iiii) no Event of Default shall have has occurred and be is continuing or would exist immediately result therefrom and, (ii) if such date of effectiveness is on or after giving effect to such Incremental Commitment;
the date of occurrence of a Collateral Trigger Event, (ivx) the representations Incremental Facilities and warranties the Loans thereunder are secured by the Collateral, and (yiii) the incurrence of each Loan Party contained in Article V such Loans will not require the granting of Liens on the Collateral or any other material property of the Loan Parties to the holder of any Material Indebtedness (including pursuant to the equal and ratable lien requirements in certain of the Company’s existing senior unsecured notes). Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects;
(v) except as set forth in Section 2.16(a) and in clauses (i) - (iv) if the proceeds of this Section 2.16(b), the terms applicable to any Incremental Term Loan shall Loans are intended to be consistent with those applicable applied to any then-existing term loans incurred under this Agreementfinance an acquisition and the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any applicable event such Incremental Joinder Agreement may provide for (ATerm Facility shall be subject to no Default or Event of Default under Sections 9.01(a) any additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to any then-existing tranche of term loans incurred under this Agreement or (B) any other terms that are reasonably satisfactory to the Administrative Agent; and
(vi) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be paid to Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borroweri). Upon the effectiveness of any Incremental Commitment Facility pursuant to this Section 2.162.13, any Person providing an Incremental Commitment Lender that was not a Lender hereunder immediately prior to at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental CommitmentsFacility, and (i) in any Incremental Loans (to the case of Incremental Revolving Commitments, the Aggregate Revolving Commitments under, and for all purpose of this Agreement, extent funded) shall be increased by the aggregate amount of such Incremental Revolving Commitments, deemed to be Loans hereunder and (ii) any Revolving Loans made under Incremental Revolving Commitments Increase shall be deemed to be Revolving Loans Commitments hereunder. Notwithstanding anything to the contrary contained herein, the Borrowers and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section 2.13.
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Incremental Effective Date. The Incremental Commitments shall be effected by a joinder agreement to this Agreement (the “Incremental Joinder Agreement”) executed by the Borrower, the Administrative Agent and each Lender making or providing such Incremental Commitment, in form and substance reasonably satisfactory to each of them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.162.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the opinion of Administrative Agent, to effect the provisions of this Section 2.12. Administrative Agent and the Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental Commitments. The effectiveness of any such Incremental Commitments shall be subject solely to the satisfaction of the following conditions to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the BorrowerAgent, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):in each case, subject to Section 1.07:
(i) the Borrower shall deliver or cause to be delivered any legal opinions or other documents (including authorization documents) reasonably requested by the Administrative Agent in connection with any such Incremental Commitments;
(ii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each Lender and other Person making or providing such Incremental Commitment;
(iii) no Event of Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental CommitmentCommitments;
(iv) the representations and warranties of each Loan Party contained set forth herein and in Article V or any the other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, Credit Documents shall be true and correct in all material respectsrespects on and as of such Incremental Effective Date as if made on and as of such date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties shall have been true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on such dates;
(v) except as set forth in Section 2.16(a[reserved];
(vi) and in clauses [reserved];
(ivii) - (iv) without the written consent of this Section 2.16(b), the terms applicable Required Tranche Lenders with respect to any Incremental Term Loan shall be consistent with those applicable to any Tranches of then-existing term loans incurred under this Agreement; provided Revolving Commitments that any applicable Incremental Joinder Agreement may provide for (A) any additional or more or less restrictive covenants that are applicable only have a maturity date after the then proposed maturity date of any New Revolving Commitments, the final stated maturity of any New Revolving Commitments shall not be earlier than the then-existing latest R/C Maturity Date with respect to the then-existing Tranches of Revolving Commitments;
(viii) other than customary “bridge” facilities (so long as the long term debt into which any such customary “bridge” facility is to be automatically converted or may be converted at Borrower’s option on customary terms satisfies the requirements of this clause (viii)) (as designated by Borrower in its sole discretion), (x) without the written consent of the Required Tranche Lenders with respect to any Tranches of then-existing Term Loans that have a maturity date after the proposed maturity date of any such other New Term Loans, the final stated maturity of any New Term Loans shall not be earlier than the then-existing Final Maturity Date with respect to any then-existing tranche Tranche of term loans incurred under this Agreement or Term Loans, and (By) without the written consent of the Required Tranche Lenders with respect to any Tranches of then-existing Term Loans that have a Weighted Average Life to Maturity that is longer than the proposed Weighted Average Life to Maturity of any such other terms that are reasonably satisfactory New Term Loans, the Weighted Average Life to Maturity of any New Term Loans shall be no shorter than the Weighted Average Life to Maturity of any then-existing Tranche of Term Loans (without giving effect to the Administrative Agenteffect of prepayments made under any existing Tranche of Term Loans on amortization); andit being understood that, subject to the foregoing, the amortization schedule applicable to such New Term Loans shall be determined by Borrower and the lenders of such New Term Loans and set forth in the applicable Incremental Joinder Agreement;
(viix) the yields, benchmark interest rate indices and interest rate margins and, except as set forth in clauses (vii) and (viii) of this Section 2.12(b), amortization schedule, applicable to any Incremental New Revolving Commitments and New Term Loans shall have be as determined by Borrower and the holders of such Indebtedness;
(x) except as set forth in Section 2.12(a) and in clauses (i) through (ix) of this Section 2.12(b), the terms (excluding maturity, amortization, pricing (including any “MFN” provisions), fees, rate floors, premiums, optional prepayment or optional redemption provisions) of any New Revolving Commitments or New Term Loans shall be (as determined by Borrower in good faith) substantially identical to the terms of the Aggregate Revolving Commitments or the Term Loans, as applicable, as existing on the date of incurrence of such New Revolving Commitments or New Term Loans except to the extent such terms (x) at the option of Borrower (1) reflect market terms and conditions (taken as a whole) at the time of incurrence or issuance (as determined by Borrower in good faith); provided that, if any financial maintenance covenant is added for the benefit of any New Revolving Commitments or New Term Loans that is more restrictive than the financial maintenance covenants than applicable to the Covenant Facilities hereunder, such financial maintenance covenant (together with any “equity cure” provisions) shall also be applicable to each Covenant Facility (except to the extent such financial maintenance covenant applies only to periods after the maturity date applicable to such Covenant Facility) or (2) are not materially more restrictive to Borrower (as determined by Borrower in good faith), when taken as a whole, than the terms of the Term Loans or the Revolving Facility, as the case may be (except for covenants or other provisions applicable only after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness)) (it being understood that any New Revolving Commitments or New Term Loans may provide for the ability to participate (i) with respect to any borrowings, voluntary prepayments or voluntary commitment reductions, on a pro rata basis, greater than pro rata basis or less than pro rata basis with the applicable Loans or facility and (ii) with respect to any mandatory prepayments, on a pro rata basis or less than pro rata basis with the applicable Loans (and on a greater than pro rata basis with respect to prepayments of any such New Revolving Commitments or New Term Loans with the proceeds of permitted refinancing Indebtedness)), or (y) are (1) added to the Term Loans or Revolving Facility, as applicable or (2) applicable only after the Final Maturity Date (in the case of term Indebtedness) or the latest R/C Maturity Date (in the case of revolving Indebtedness);
(xi) any Incremental Term A Loans (and the corresponding Incremental Term Loan Commitments) shall have terms substantially identical to the terms of the existing Term A Facility Loans (and the existing Term Loan Commitments of such Class); provided, however, that upfront fees or original issue discount may be paid to Lenders providing such Incremental Term A Loans as agreed by such Lenders and Borrower, and the conditions applicable to the incurrence of such Incremental Term A Loans (and the corresponding Incremental Term Loan Commitments) shall be as provided in this Section 2.12; provided, further, that the applicable Incremental Joinder Agreement shall make appropriate adjustments to Sections 3.01(b) or 3.01(c) to address such Incremental Term A Loans, including such adjustments as are necessary to provide for the “fungibility” of such Incremental Term A Loans with the existing Term A Facility Loans; and
(xii) any Incremental Existing Tranche Revolving Commitments shall have terms substantially identical to the terms of the existing Revolving Commitments of the relevant Tranche hereunder; provided, however, that upfront fees may be paid to Lenders providing such Incremental Existing Tranche Revolving Commitments as agreed by such Lenders and Borrower, and the Borrowerconditions applicable to the incurrence of such Incremental Existing Tranche Revolving Commitments shall be as provided in this Section 2.12. Upon the effectiveness of any Incremental Commitment pursuant to this Section 2.162.12, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) in the case of Incremental Revolving Commitments, the Aggregate Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any New Revolving Loans shall be deemed to be additional Revolving Loans hereunder, (iii) any Revolving Loans made under Incremental Existing Tranche Revolving Commitments shall be deemed to be Revolving Loans of the relevant Tranche hereunder, (iv) any Incremental Term A Loans (to the extent funded) shall be deemed to be Term A Facility Loans hereunder, and (v) any New Term Loans shall be deemed to be additional Term Loans hereunder. Notwithstanding anything to the contrary contained herein, Borrower, Collateral Agent and Administrative Agent may (and each of Collateral Agent and Administrative Agent are authorized by each other Secured Party to) execute such amendments and/or amendments and restatements of any Credit Documents as may be necessary or advisable to effectuate the provisions of this Section 2.12. Such amendments may include provisions allowing any New Term Loans to be treated on the same basis as any other applicable Tranche of Term Loans in connection with declining prepayments. In connection with the incurrence of any Incremental Term A Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term A Facility Loans on the date such Incremental Term A Loans are incurred. In connection with the incurrence of any Incremental Existing Tranche Revolving Commitments and related Revolving Loans, Borrower shall be permitted to terminate any Interest Period applicable to Revolving Loans under the applicable existing Tranche of Revolving Commitments on the date such Revolving Loans are first incurred under such Incremental Existing Tranche Revolving Commitments.
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Samples: Credit Agreement (Boyd Gaming Corp)