Incremental Effective Date. Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), each Incremental Lender making or providing such Commitment and, in 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 them (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 2.13. 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 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 and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent: (i) the 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 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 Facility; and (iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 4 contracts
Sources: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International)
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (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))them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.16. 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 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject to the satisfaction of the following conditions precedent: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 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 Borrower 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Facility. Notwithstanding Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment;
(iv) the foregoingrepresentations and warranties of each Loan Party contained in Article V or any other Loan Document, no Incremental Facility or which are contained in any document furnished at any time under or in connection herewith or therewith, shall become effective under this be true and correct in all material respects;
(v) except as set forth in Section 2.13 unless on the date of such effectiveness 2.16(a) and in clauses (i) no Event - (iv) 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) the incurrence of 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 Document2.16(b), if the proceeds of terms applicable to any Incremental Term Loans 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 intended 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 applied paid to finance an acquisition and the Lenders or additional Lender providing such Incremental Term Loans so agree, Revolving Commitments as agreed by such Lenders and the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i)Borrower. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.132.16, any Person providing an Incremental Lender Commitment that was not a Lender hereunder at 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 FacilityCommitments, and (i) any in the case of Incremental Loans (to Revolving Commitments, the extent funded) Aggregate Revolving Commitments under, and for all purpose of this Agreement, shall be deemed to be Loans hereunder increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Increase Commitments shall be deemed to be Revolving Commitments Loans 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
Sources: Credit Agreement (Green Plains Inc.), Credit Agreement (Green Plains Partners LP), Credit Agreement (Green Plains Partners LP)
Incremental Effective Date. Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (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 2.13. 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 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 and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) the 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 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 Facility; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 2 contracts
Sources: Credit Agreement (MGM Resorts International), Credit Agreement (MGM Resorts International)
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the BorrowersBorrower, to give effect to the terms and provisions of any Incremental Facilities Commitments (and any Loans made in respect thereof)), ; subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.13. 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 the BorrowersAgent, 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)2.13. If the Incremental Facilities Commitments are provided in accordance with this Section 2.13, the Borrowers Borrower shall determine the effective date (each, an “Incremental Effective Date”) and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of As a condition precedent to any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of Commitments the following conditions precedentshall have been satisfied:
(i) (A) no Event of Default exists or would exist after giving effect to such Incremental Commitments and (B) the conditions set forth 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 4.02(b) 5.05 and Section 5.06 shall be satisfied with respect deemed to refer to the effectiveness of the applicable Incremental Facilitymost 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 Borrowers Borrower shall deliver or cause to be delivered any legal opinions 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 FacilityDate; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i)Commitment. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental FacilityCommitments, and (i) any Incremental Term Loans (to the extent funded) shall be deemed to be Term Loans hereunder and hereunder, (ii) any Increase Term Loans (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Increase Commitments shall be deemed to be Revolving 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 Borrowers 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
Sources: Credit Agreement (Vici Properties Inc.), Credit Agreement (Vici Properties Inc.)
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), Borrower and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (includingthem, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the and delivered to Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof))Agent, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersAgent, 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 2.12. Administrative Agent 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject solely to the satisfaction of the following conditions precedentto the reasonable satisfaction of Administrative Agent:
(i) the 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 Borrower shall deliver or cause to be delivered any legal opinions or other 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers▇▇▇▇▇▇▇▇, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness Commitment;
(iiii) no Event of Default has shall have occurred and is be continuing or would exist immediately after giving effect to such Incremental Commitments; 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 set forth herein and in the other Credit Documents shall be true and correct in all material respects 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 therefromof 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 2.12(a) and in clauses (i) – (vii) of this Section 2.12(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 as provided in this Section 2.12; provided, further, that the applicable Incremental Joinder Agreement 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 the “fungibility” of such Incremental Term A Loans with the existing Term A Facility Loans; and
(x) 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 conditions 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 2.12, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. 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 Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, (ii) the Incremental Facilities and the any New Revolving Loans thereunder are secured by the Collateralshall be deemed to be additional Revolving Loans hereunder, and (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 such any Incremental Term A Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term A Facility Loans will not require the granting of Liens on the Collateral or any other material property of date such Incremental Term A Loans are incurred without the Loan Parties to the holder payment of any Material Indebtedness (including pursuant amounts under Section 5.05 or to include such Incremental Term A Loans ratably in each outstanding Borrowing of SOFR Loans under the equal Term A Facility. In connection with the incurrence of any Incremental Existing Tranche Revolving Commitments and ratable lien requirements 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 certain each outstanding Borrowing of SOFR Loans under such Tranche of Revolving Commitments on the Company’s existing senior unsecured notes)date such Revolving Loans are first incurred under such Incremental Existing Tranche Revolving Commitments. Notwithstanding anything to the contrary in this Section 2.13 2.12 or in any other provisions of any Loan Documentthis Agreement, if the proceeds of any Incremental Term Loans Commitments are intended to be applied being used to finance an acquisition a Limited Condition Transaction or similar Investment permitted hereunder and the Incremental Lenders or additional Lender providing such Incremental Term Loans Commitments so agree, the availability thereof may shall be subject to customary “SunGard” or “certain funds” conditionality; provided provided, that in any event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness amount of any Incremental Facility pursuant to this Section 2.13Commitments under the Incremental Incurrence-Based Amount determined at the time of signing of definitive documentation with respect to, any Incremental Lender that was not or giving of notice with respect to, a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 Limited Condition Transaction may be necessary or advisable to effectuate recalculated, at the provisions option of this Section 2.13Borrower, at the time of funding.
Appears in 2 contracts
Sources: Credit Agreement (Wynn Resorts LTD), Credit Agreement (Wynn Resorts LTD)
Incremental Effective Date. Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (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 2.13. 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 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 and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) the 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 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 Loan GuarantorLoan Party in connection with any such Incremental Facility; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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 therefromtherefrom and, (ii) if such date of effectiveness is on or after the date of occurrence of a Collateral Trigger Event, (x) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iiiyiii) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section Sections 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the BorrowersBorrower, to give effect to the terms and provisions of any Incremental Facilities Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.13. 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 the BorrowersAgent, 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)2.13. If the Incremental Facilities Commitments are provided in accordance with this Section 2.13, the Borrowers Borrower shall determine the effective date (each, an “Incremental Effective Date”) and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of As a condition precedent to any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of Commitments the following conditions precedentshall have been satisfied:
(i) (A) no Event of Default exists or would exist after giving effect to such Incremental Commitments and (B) the conditions set forth 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 4.02(b) 5.05 and Section 5.06 shall be satisfied with respect deemed to refer to the effectiveness of the applicable Incremental Facilitymost 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 Borrowers Borrower shall deliver or cause to be delivered any legal opinions 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 Facility; andDate;
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding Commitment; and
(v) after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the foregoinguse of proceeds thereof (including any related acquisition or Investment permitted hereunder), no Incremental Facility shall become effective under this the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 2.13 unless on 8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such effectiveness Incremental Revolving Commitments or Incremental Term Loans (iincluding the proviso to Section 8.11(b) no Event if applicable) (provided that, for the purposes of Default has occurred and is continuing or would result therefromsuch calculation, (iiA) any such Incremental Revolving Commitments shall be deemed to be fully drawn and (B) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iii) the incurrence cash proceeds of such Incremental Revolving Commitments and Incremental Term Loans will shall not require be taken into account for any cash netting), whether or not the granting of Liens on Revolving Facility or the Collateral or Term A Facility is then in effect; provided that any other material property of the Loan Parties ratio calculated under this clause (v) shall be calculated subject to Section 1.07 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 Documentextent applicable and, if the proceeds of any the relevant Incremental Term Loans are intended to Commitments will be applied to finance an acquisition and a Limited Condition Transaction, compliance with the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may financial covenants in Section 8.11 will be subject to customary “SunGard” or “certain funds” conditionality; provided that determined in any event such Incremental Term Facility shall be subject to no Default or Event of Default under accordance with Section 9.01(a) or (i)1.08. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental FacilityCommitments, and (i) any Incremental Term Loans (to the extent funded) shall be deemed to be Term Loans hereunder and hereunder, (ii) any Increase Term Loans (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Increase Commitments shall be deemed to be Revolving 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 Borrowers 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
Incremental Effective Date. Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (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 2.13. 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 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 and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) the 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 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 Loan Party Guarantor in connection with any such Incremental Facility; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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 therefromtherefrom and (ii) if such date of effectiveness is on or after the date of occurrence of a Collateral Trigger Event, (iix) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iiiy) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section Sections 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), Borrower and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (includingthem, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the and delivered to Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof))Agent, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersAgent, 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 2.12. Administrative Agent 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject solely to the satisfaction of the following conditions precedentto the reasonable satisfaction of Administrative Agent:
(i) the 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 Borrower shall deliver or cause to be delivered any legal opinions or other 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers▇▇▇▇▇▇▇▇, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness Commitment;
(iiii) no Event of Default has shall have occurred and is be continuing or would exist immediately after giving effect to such Incremental Commitments; 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 ▇▇▇▇▇▇▇▇);
(iv) the representations and warranties set forth herein and in the other Credit Documents shall be true and correct in all material respects 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 therefromof 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 2.12(a) and in clauses (i) – (vii) of this Section 2.12(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 as provided in this Section 2.12; provided, further, that the applicable Incremental Joinder Agreement 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 the “fungibility” of such Incremental Term A Loans with the existing Term A Facility Loans; and
(x) 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 conditions 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 2.12, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. 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 Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, (ii) the Incremental Facilities and the any New Revolving Loans thereunder are secured by the Collateralshall be deemed to be additional Revolving Loans hereunder, and (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 such any Incremental Term A Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term A Facility Loans will not require the granting of Liens on the Collateral or any other material property of date such Incremental Term A Loans are incurred without the Loan Parties to the holder payment of any Material Indebtedness (including pursuant amounts under Section 5.05 or to include such Incremental Term A Loans ratably in each outstanding Borrowing of SOFR Loans under the equal Term A Facility. In connection with the incurrence of any Incremental Existing Tranche Revolving Commitments and ratable lien requirements 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 certain each outstanding Borrowing of SOFR Loans under such Tranche of Revolving Commitments on the Company’s existing senior unsecured notes)date such Revolving Loans are first incurred under such Incremental Existing Tranche Revolving Commitments. Notwithstanding anything to the contrary in this Section 2.13 2.12 or in any other provisions of any Loan Documentthis Agreement, if the proceeds of any Incremental Term Loans Commitments are intended to be applied being used to finance an acquisition a Limited Condition Transaction or similar Investment permitted hereunder and the Incremental Lenders or additional Lender providing such Incremental Term Loans Commitments so agree, the availability thereof may shall be subject to customary “SunGard” or “certain funds” conditionality; provided provided, that in any event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness amount of any Incremental Facility pursuant to this Section 2.13Commitments under the Incremental Incurrence-Based Amount determined at the time of signing of definitive documentation with respect to, any Incremental Lender that was not or giving of notice with respect to, a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 Limited Condition Transaction may be necessary or advisable to effectuate recalculated, at the provisions option of this Section 2.13Borrower, at the time of funding.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)
Incremental Effective Date. Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (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 2.13. 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 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 and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) the 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 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 Facility; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section Sections 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (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))them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.16. 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 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject to the satisfaction of the following conditions precedent: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 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 Borrower 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Facility. Notwithstanding Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment;
(iv) the foregoingrepresentations and warranties of each Loan Party contained in Article V or any other Loan Document, no Incremental Facility or which are contained in any document furnished at any time under or in connection herewith or therewith, shall become effective under this be true and correct in all material respects;
(v) except as set forth in Section 2.13 unless on the date of such effectiveness 2.16(a) and in clauses (i) no Event - (iv) 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) the incurrence of 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 Document2.16(b), if the proceeds of terms applicable to any Incremental Term Loans are intended Loan shall be consistent with those applicable to be applied to finance 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” conditionalityany then-existing term loans incurred under this Agreement; provided that in any event such applicable Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or Joinder Agreement may provide for (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (iA) any Incremental Loans (additional or more or less restrictive covenants that are applicable only after the then latest Maturity Date with respect to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 then-existing tranche of any Loan Documents as may be necessary or advisable to effectuate the provisions of term loans incurred under this Section 2.13.Agreement or
Appears in 1 contract
Sources: Credit Agreement
Incremental Effective Date. The Incremental Term Loan Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment andIncremental Term Loan Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (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))them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion judgment of the Administrative Agent and the BorrowersAgent, 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 2.12. Administrative Agent 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Term Loan Commitments and the final allocation of such Incremental FacilitiesTerm Loan Commitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Term Loan Commitments shall be subject solely to the satisfaction of the following conditions precedentto the reasonable satisfaction of Administrative Agent:
(i) the 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 Borrower shall deliver or cause to be delivered any legal opinions or other 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 Facility; andTerm Loan Commitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent Agent, and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness Term Loan Commitment;
(iiii) no Event of Default has shall have occurred and is be continuing or would result therefromexist immediately after giving effect to such Incremental Term Loan Commitments; provided that, (ii) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iii) the incurrence of such Loans will not require the granting of Liens on the Collateral or any other material property of the Loan Parties with respect 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, if the proceeds of any Incremental Term Loans (and any related Incremental Term Loan Commitments) the proceeds of which are intended used primarily to be applied 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 finance an acquisition 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 or additional Lender providing such Incremental Term Loans so agreeor Incremental Term Loan Commitments;
(iv) the representations and warranties set forth herein and in the other Credit Documents shall be true and correct in all material respects 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 availability thereof 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 customary 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 “SunGardfungibility” or “certain funds” conditionality; provided that in any event 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 subject as determined by Borrower and the holders of such Indebtedness;
(vii) except as set forth in Section 2.12(a) and in clauses (i) through (vi) of this Section 2.12(b), the terms (excluding maturity, amortization, pricing, fees, rate floors, premiums, optional prepayment or optional redemption provisions) applicable to no Default any New Term Loans shall be (as determined by Borrower in good faith) substantially consistent with those applicable to any then-existing Term 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 Event issuance (as determined by Borrower in good faith); provided that, if any financial maintenance covenant is added for the benefit of Default under Section 9.01(aany 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 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 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 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 Final Maturity Date applicable to the Term Facility Loans, or (3) 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 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);
(viii) any Incremental Term Facility Loans (and the corresponding Incremental Term Facility Loan Commitments) shall have terms identical to the terms of the 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 Term Facility Loans as agreed by such Lenders and Borrower, and the conditions 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 Facility Term Loan Commitment pursuant to this Section 2.132.12, any Person providing an Incremental Lender Term Loan Commitment that was not a Lender hereunder at 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 FacilityTerm Loan Commitments, and (i) any Incremental Term Facility Loans (to the extent funded) shall be deemed to be Term Facility Loans hereunder and (ii) any Incremental Revolving Increase New Term Loans shall be deemed to be Revolving Commitments additional Term Loans hereunder. Notwithstanding anything to the contrary contained herein, the Borrowers Borrower, Collateral Agent, and the Administrative Agent may (and the each of Collateral Agent and Administrative Agent is are authorized by each Lender other Secured Party to) execute such amendments and/or amendments and restatements of any Loan Credit Documents as may be necessary or advisable to effectuate the provisions of this Section 2.132.12. 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
Sources: Credit Agreement (Wynn Resorts LTD)
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the BorrowersBorrower, to give effect to the terms and provisions of any Incremental Facilities Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.13. 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 the BorrowersAgent, 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)2.13. If the Incremental Facilities Commitments are provided in accordance with this Section 2.13, the Borrowers Borrower shall determine the effective date (each, an “Incremental Effective Date”) and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of As a condition precedent to any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of Commitments the following conditions precedentshall have been satisfied:
(i) (A) no Event of Default exists or would exist after giving effect to such Incremental Commitments and (B) the conditions set forth 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 4.02(b) 5.05 and Section 5.06 shall be satisfied with respect deemed to refer to the effectiveness of the applicable Incremental Facilitymost 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 Borrowers Borrower shall deliver or cause to be delivered any legal opinions 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 Facility; andDate;
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding Commitment; and
(v) after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the foregoinguse of proceeds thereof (including any related acquisition or Investment permitted hereunder), no Incremental Facility shall become effective under this the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 2.13 unless on 8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such effectiveness Incremental Revolving Commitments or Incremental Term Loans (iincluding the proviso to Section 8.11(b) no Event if applicable) (provided that, for the purposes of Default has occurred and is continuing or would result therefromsuch calculation, (iiA) any such Incremental Revolving Commitments shall be deemed to be fully drawn and (B) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iii) the incurrence cash proceeds of such Incremental Revolving Commitments and Incremental Term Loans will shall not require be taken into account for any cash netting), whether or not the granting of Liens on Revolving Facility, the Collateral Term A Facility or the Fourth Amendment Increase Term A Facility is then in effect; provided that any other material property of the Loan Parties ratio calculated under this clause (v) shall be calculated subject to Section 1.07 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 Documentextent applicable and, if the proceeds of any the relevant Incremental Term Loans are intended to Commitments will be applied to finance an acquisition and a Limited Condition Transaction, compliance with the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may financial covenants in Section 8.11 will be subject to customary “SunGard” or “certain funds” conditionality; provided that determined in any event such Incremental Term Facility shall be subject to no Default or Event of Default under accordance with Section 9.01(a) or (i)1.08. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental FacilityCommitments, and (i) any Incremental Term Loans (to the extent funded) shall be deemed to be Term Loans hereunder and hereunder, (ii) any Increase Term Loans (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Increase Commitments shall be deemed to be Revolving 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 Borrowers 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
Sources: Credit Agreement (MGM Growth Properties Operating Partnership LP)
Incremental Effective Date. Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), ) and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (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 2.13. 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 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)2.13. If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) the 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 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 Facility; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (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))them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.16. 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 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 FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject to the satisfaction of the following conditions precedent:to the reasonable satisfaction of the Administrative Agent (and such other conditions as may be agreed by the Borrowers, the Administrative Agent and the Lenders and other Persons making or providing such Incremental Commitment):
(i) the 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender and other Person making or providing such Incremental Facility. Notwithstanding Commitment;
(iii) no Default shall have occurred and be continuing or would exist immediately after giving effect to such Incremental Commitment (provided that, to the foregoingextent the proceeds of an Incremental Term Loan are being used to finance a Permitted Acquisition or other Investment permitted by Section 7.02, no 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 Facility Term Loan shall become effective 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);
(A) 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 Section 2.13 unless on 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 effectiveness 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) no Event - (vi) 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) the incurrence of 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 Document2.16(b), if the proceeds of terms applicable to any Incremental Term Loans 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 intended 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;
(viii) any Incremental Revolving Commitments shall have terms identical to the terms of the Aggregate Revolving Commitments; provided, however, that upfront fees may be applied paid to finance an acquisition Lenders providing such Incremental Revolving Commitments as agreed by such Lenders and the Borrowers; 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 or additional Lender providing such Incremental Term Loans so agree, Loan Commitments as agreed by such Lenders and the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i)Borrowers. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.132.16, any Person providing an Incremental Lender Commitment that was not a Lender hereunder at 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 FacilityCommitments, and (i) any in the case of Incremental Loans (to Revolving Commitments, the extent funded) Aggregate Revolving Commitments under, and for all purpose of this Agreement, shall be deemed to be Loans hereunder increased by the aggregate amount of such Incremental Revolving Commitments, and (ii) any Revolving Loans made under Incremental Revolving Increase Commitments shall be deemed to be Revolving Commitments Loans 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 in respect of any Incremental Facility shall become Commitments (or in and the case of an Incremental Revolving Increase Commitments, and the obligations of the Lenders party hereto to be provided by an existing Lender with a Revolving Commitmentmake Loans and other extensions of credit thereunder, an increase in such Lender’s applicable Revolving Commitment) under this Agreement pursuant to a joinder agreement to this Agreement shall not become effective until the date (the “Incremental Joinder AgreementEffective Date”) andon 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, as appropriate, the other Loan Documents, executed by the Borrowers, and the Administrative Agent (such consent not 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 be unreasonably withheld or delayed), each Incremental Lender making or the foregoing and providing such Commitment andreasonably detailed calculations with respect to the representation and warranty set forth in Section 8(d) hereof, in the each case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), 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 of them Holdings and the Borrower, (includingA) 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, without limitationtogether 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 technical amendments copy as may be necessary or advisablebeing complete and correct, in each case in form and substance reasonably satisfactory to the reasonable Administrative Agent.
(iii) The Administrative Agent shall have received a certificate, dated the Incremental Effective 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 the Administrative Agent.
(iv) The Administrative Agent shall have received a favorable written opinion of (addressed to the Administrative Agent and the BorrowersLenders party hereto and dated the Incremental Effective Date) of each of (A) ▇▇▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇▇ LLP, counsel for Holdings and the Borrower, and (B) 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 give effect in clause (B) above, in each case in form and substance reasonably satisfactory to the terms Administrative Agent.
(v) The Administrative Agent shall have received such board resolutions and provisions secretary and officer certificates and other documents as the Administrative Agent may reasonably request relating to the organization, existence and good standing of any Incremental Facilities (each Loan Party, the authorization of the Transactions and any Loans made in respect thereof)), subject, however, other legal matters relating to the satisfaction of Loan Parties and the conditions precedent set forth Transactions, in this Section 2.13. The Incremental Joinder Agreement mayeach case in form and substance reasonably satisfactory to the Administrative Agent.
(vi) Each Loan Party shall have entered into a Reaffirmation Agreement, without in form and substance reasonably satisfactory to the consent of any other LendersAdministrative Agent, effect such amendments pursuant to which it confirms that it consents to this Agreement and the other Incremental Term Commitments and the Incremental Revolving Commitments established pursuant to this Agreement, and the extension of credit thereunder, and that 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 Loan Documents as may be necessary or appropriateParty.
(vii) The Administrative Agent and the Incremental Facilities Arranger shall have received payment, in immediately available funds, from the reasonable opinion Borrower of all fees, expenses and other amounts due and payable to the Administrative Agent and the BorrowersIncremental Facilities Arranger on or prior to the Incremental Effective Date, including pursuant to effect Section 7 hereof and the provisions of this Section 2.13 Credit Agreement (including in connection with an Incremental Revolving IncreaseSection 2.16 thereof, to reallocate the Outstanding Amount of Revolving Loans and L/C Obligations on a pro rata basis among the relevant Revolving Lendersif applicable). If the Incremental Facilities are provided in accordance with this Section 2.13, the Borrowers shall determine the effective date and the final allocation of such Incremental Facilities. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) the 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 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 Facility; and
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrowers, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental 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) the incurrence of 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, if the proceeds of any Incremental Term Loans are intended to be applied to finance 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 event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness of any Incremental Facility pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 2.13Sections 2, 3, 4 and 6 hereof shall have no force or effect if the Incremental Effective Date shall not have occurred on or prior to May 31, 2013.
Appears in 1 contract
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (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))them, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersAgent, 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 2.12. Administrative Agent 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject solely to the satisfaction of the following conditions precedentto the reasonable satisfaction of Administrative Agent, in each case, subject to Section 1.07:
(i) the 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 Borrower shall deliver or cause to be delivered any legal opinions or other 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding the foregoing, no Incremental Facility shall become effective under this Section 2.13 unless on the date of such effectiveness Commitment;
(iiii) no Event of Default has shall have occurred and is be continuing or would result therefromexist immediately after giving effect to such Incremental Commitments;
(iv) the representations and warranties set forth herein and in the other Credit Documents shall be true and correct in all material respects 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) [reserved];
(vi) [reserved];
(vii) without the written consent of the Required Tranche Lenders with respect to any Tranches of then-existing Revolving Commitments that have a maturity date after the 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 of Term Loans, and (y) 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 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, 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;
(ix) 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 New Revolving Commitments and New Term Loans shall 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 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 Facilities 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 thereunder are secured (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 the Collateralsuch Lenders and Borrower, and (iii) the conditions applicable to the incurrence of such Incremental Term A Loans will not require (and the granting of Liens on the Collateral or any other material property of the corresponding Incremental Term 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 Commitments) shall be as provided in this Section 2.13 2.12; provided, further, that the applicable Incremental Joinder Agreement shall make appropriate adjustments to Sections 3.01(b) or in any other provisions 3.01(c) to address such Incremental Term A Loans, including such adjustments as are necessary to provide for the “fungibility” of any Loan Document, if such Incremental Term A Loans with the proceeds of existing Term A Facility Loans; and
(xii) any Incremental Term Loans are intended 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 applied paid to finance an acquisition and the Lenders or additional Lender providing such Incremental Term Loans so agreeExisting Tranche Revolving Commitments as agreed by such Lenders and Borrower, and the availability thereof may be subject conditions applicable to customary “SunGard” or “certain funds” conditionality; provided that in any event the incurrence of such Incremental Term Facility Existing Tranche Revolving Commitments shall be subject to no Default or Event of Default under as provided in this Section 9.01(a) or (i)2.12. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.132.12, any Person providing an Incremental Lender Commitment that was not a Lender hereunder at 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 FacilityCommitments, and (i) in the case of Incremental Revolving Commitments, the Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, (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 hereunder, and (iiv) any Incremental Revolving Increase New Term Loans shall be deemed to be Revolving Commitments additional Term Loans hereunder. Notwithstanding anything to the contrary contained herein, the Borrowers Borrower, Collateral Agent and the Administrative Agent may (and the each of Collateral Agent and Administrative Agent is are authorized by each Lender other Secured Party to) execute such amendments and/or amendments and restatements of any Loan Credit Documents as may be necessary or advisable to effectuate the provisions of this Section 2.132.12. 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.
Appears in 1 contract
Sources: Credit Agreement (Boyd Gaming Corp)
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 an “Incremental Joinder Agreement”) and, as appropriate, the other Loan Documents, executed by the BorrowersBorrower, the Administrative Agent (such consent not to be unreasonably withheld or delayed), and each Incremental Lender making or providing such Commitment and, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed)Commitment, reasonably satisfactory to each of them (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the BorrowersBorrower, to give effect to the terms and provisions of any Incremental Facilities Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.13. 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 the BorrowersAgent, 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)2.13. If the Incremental Facilities Commitments are provided in accordance with this Section 2.13, the Borrowers Borrower shall determine the effective date (each, an “Incremental Effective Date”) and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of As a condition precedent to any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement shall be subject to the satisfaction of Commitments the following conditions precedentshall have been satisfied:
(i) (A) no Event of Default exists or would exist after giving effect to such Incremental Commitments and (B) the conditions set forth 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 4.02(b) 5.05 and Section 5.06 shall be satisfied with respect deemed to refer to the effectiveness of the applicable Incremental Facilitymost 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 Borrowers Borrower shall deliver or cause to be delivered any legal opinions 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 Facility; andDate;
(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Facility. Notwithstanding Commitment; and
(v) after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the foregoinguse of proceeds thereof (including any related acquisition or Investment permitted hereunder), no Incremental Facility shall become effective under this the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 2.13 unless on 8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such effectiveness Incremental Revolving Commitments or Incremental Term Loans (iincluding the proviso to Section 8.11(b) no Event if applicable) (provided that, for the purposes of Default has occurred and is continuing or would result therefromsuch calculation, (iiA) any such Incremental Revolving Commitments shall be deemed to be fully drawn and (B) the Incremental Facilities and the Loans thereunder are secured by the Collateral, and (iii) the incurrence cash proceeds of such Incremental Revolving Commitments and Incremental Term Loans will shall not require be taken into account for any cash netting), whether or not the granting of Liens on Revolving Facility, the Collateral Term A Facility or the Fourth Amendment Increase Term A Facility is then in effect; provided that any other material property of the Loan Parties ratio calculated under this clause (v) shall be calculated subject to Section 1.07 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 Documentextent applicable and, if the proceeds of any the relevant Incremental Term Loans are intended to Commitments will be applied to finance an acquisition and a Limited Condition Transaction, compliance with the Lenders or additional Lender providing such Incremental Term Loans so agree, the availability thereof may financial covenants in Section 8.11 will be subject to customary “SunGard” or “certain funds” conditionality; provided that determined in any event such Incremental Term Facility shall be subject to no Default or Event of Default under accordance with Section 9.01(a) or (i)1.08. Upon the effectiveness of any Incremental Facility Commitment pursuant to this Section 2.13, any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental FacilityCommitments, and (i) any Incremental Term Loans (to the extent funded) shall be deemed to be Term Loans hereunder and hereunder, (ii) any Increase Term Loans (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Increase Commitments shall be deemed to be Revolving 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 Borrowers 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
Sources: Credit Agreement (MGM Growth Properties Operating Partnership LP)
Incremental Effective Date. The Incremental Commitments in respect of any Incremental Facility shall become Commitments (or in the case of an Incremental Revolving Increase to be provided effected 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 Borrowers, the Administrative Agent (such consent not to be unreasonably withheld or delayed), Borrower and each Incremental Lender making or providing such Commitment andIncremental Commitment, in the case of an Incremental Revolving Commitment Increase, each L/C Issuer (such consent not to be unreasonably withheld or delayed), form and substance reasonably satisfactory to each of them (includingthem, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the and delivered to Administrative Agent and the Borrowers, to give effect to the terms and provisions of any Incremental Facilities (and any Loans made in respect thereof))Agent, subject, however, to the satisfaction of the conditions precedent set forth in this Section 2.132.12. The Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Credit Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the BorrowersAgent, 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 2.12. Administrative Agent 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 Borrower shall determine the effective date (each, an “Incremental Effective Date”) of any Incremental Commitments and the final allocation of such Incremental FacilitiesCommitments. The effectiveness of any Incremental Joinder Agreement and the occurrence of any credit event pursuant to such Incremental Joinder Agreement Commitments shall be subject solely to the satisfaction of the following conditions precedentto the reasonable satisfaction of Administrative Agent:
(i) the 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 Borrower shall deliver or cause to be delivered any legal opinions or other 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 Facility; andCommitments;
(ivii) an Incremental Joinder Agreement shall have been duly executed and delivered by the BorrowersBorrower, the Administrative Agent and each applicable Incremental Lender 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 Commitments; 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 set forth herein and in the other Credit Documents shall be true and correct in all material respects 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. Notwithstanding , 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, no 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 Facility shall become effective under Joinder Agreement;
(vii) the yields and interest rate margins and, except as set forth in clauses (v) and (vi) of this Section 2.13 unless 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 2.12(a) and in clauses (i) – (vii) of this Section 2.12(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 effectiveness 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 Event consent shall be required from Administrative Agent or any of Default has occurred 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 is continuing 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 would result therefromoriginal 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 as provided in this Section 2.12; provided, further, that the applicable Incremental Joinder Agreement 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 the “fungibility” of such Incremental Term A Loans with the existing Term A Facility Loans; and
(x) 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 conditions 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 2.12, any Person providing an Incremental Commitment that was not a Lender hereunder immediately prior to such time shall become a Lender hereunder. 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 Total Revolving Commitments under, and for all purpose of this Agreement, shall be increased by the aggregate amount of such Incremental Revolving Commitments, (ii) the Incremental Facilities and the any New Revolving Loans thereunder are secured by the Collateralshall be deemed to be additional Revolving Loans hereunder, and (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 such any Incremental Term A Loans, Borrower shall be permitted to terminate any Interest Period applicable to Term A Facility Loans will not require the granting of Liens on the Collateral or any other material property of date such Incremental Term A Loans are incurred without the Loan Parties to the holder payment of any Material Indebtedness (including pursuant amounts under Section 5.05 or to include such Incremental Term A Loans ratably in each outstanding Borrowing of LIBOR Loans under the equal Term A Facility. In connection with the incurrence of any Incremental Existing Tranche Revolving Commitments and ratable lien requirements 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 certain each outstanding Borrowing of LIBOR Loans under such Tranche of Revolving Commitments on the Company’s existing senior unsecured notes)date such Revolving Loans are first incurred under such Incremental Existing Tranche Revolving Commitments. Notwithstanding anything to the contrary in this Section 2.13 2.12 or in any other provisions of any Loan Documentthis Agreement, if the proceeds of any Incremental Term Loans Commitments are intended to be applied being used to finance an acquisition a Limited Condition Transaction or similar Investment permitted hereunder and the Incremental Lenders or additional Lender providing such Incremental Term Loans Commitments so agree, the availability thereof may shall be subject to customary “SunGard” or “certain funds” conditionality; provided provided, that in any event such Incremental Term Facility shall be subject to no Default or Event of Default under Section 9.01(a) or (i). Upon the effectiveness amount of any Incremental Facility pursuant to this Section 2.13Commitments under the Incremental Incurrence-Based Amount determined at the time of signing of definitive documentation with respect to, any Incremental Lender that was not or giving of notice with respect to, a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Facility, and (i) any Incremental Loans (to the extent funded) shall be deemed to be Loans hereunder and (ii) any Incremental Revolving Increase shall be deemed to be Revolving 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 Limited Condition Transaction may be necessary or advisable to effectuate recalculated, at the provisions option of this Section 2.13Borrower, at the time of funding.
Appears in 1 contract
Sources: Credit Agreement (Wynn Resorts LTD)