Limited Condition Acquisitions Notwithstanding anything in this Agreement or any Loan Document to the contrary, when calculating any applicable ratio or any basket based on Consolidated EBITDA or total assets, or determining other compliance with this Agreement (including the determination of compliance with any provision of this Agreement which requires that no Default or Event of Default has occurred, is continuing or would result therefrom, but excluding Section 4.02 to the extent set forth therein) in connection with a Specified Transaction undertaken in connection with the consummation of a Limited Condition Acquisition, the date of determination of such ratio or any basket based on Consolidated EBITDA or total assets, and determination of whether any Default or Event of Default has occurred, is continuing or would result therefrom or other applicable covenant shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Acquisition, an “LCA Election”), be deemed to be the date the definitive agreements for such Limited Condition Acquisition are entered into (the “LCA Test Date”) and if, after such ratios and other provisions are measured on a Pro Forma Basis after giving effect to such Limited Condition Acquisition and the other Specified Transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) as if they occurred at the beginning of the applicable Test Period ending prior to the LCA Test Date, the Borrower could have taken such action on the relevant LCA Test Date in compliance with such ratios and provisions, such provisions shall be deemed to have been complied with; provided that no such acquisition shall constitute a Limited Condition Acquisition unless the Payment Conditions are satisfied on a Pro Forma Basis on the applicable LCA Test Date. For the avoidance of doubt, (x) if any of such ratios are exceeded as a result of fluctuations in such ratio (including due to fluctuations in Consolidated EBITDA of the Borrower and its Subsidiaries) at or prior to the consummation of the relevant Limited Condition Acquisition, such ratios and other provisions will not be deemed to have been exceeded as a result of such fluctuations solely for purposes of determining whether the Limited Condition Acquisition is permitted hereunder and (y) such ratios and other provisions shall not be tested at the time of consummation of such Limited Condition Acquisition or related Specified Transactions. If the Borrower has made an LCA Election for any Limited Condition Acquisition, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCA Test Date and prior to the earlier of the date on which such Limited Condition Acquisition is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Acquisition, any such ratio or basket shall be calculated on a Pro Forma Basis assuming such Limited Condition Acquisition and other transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated.
Conditions Precedent to Initial Borrowing The initial Borrowing under this Agreement is subject to the satisfaction of the following conditions precedent, except as otherwise agreed between the Borrower and the Administrative Agent.
Conditions Precedent to the Initial Extension of Credit The obligation of each Lender to make the initial extensions of credit provided for hereunder is subject to the fulfillment, to the satisfaction of Agent and each Lender, of each of the conditions precedent set forth on Schedule 3.1 to this Agreement (the making of such initial extensions of credit by a Lender being conclusively deemed to be its satisfaction or waiver of the conditions precedent).
Conditions Precedent to Borrowings 5.1 Conditions Precedent to the Initial Borrowing of TBC 37 5.2 Conditions Precedent to Each Committed Borrowing of TBC 38 5.3 Conditions Precedent to Each Bid Borrowing of TBC 38 5.4 Conditions Precedent to the Initial Borrowing of a Subsidiary Borrower 39 5.5 Conditions Precedent to Each Committed Borrowing of a Subsidiary Borrower 39 5.6 Conditions Precedent to Each Bid Borrowing of a Subsidiary Borrower 40
Conditions Precedent to Initial Extension of Credit Before the first extension of credit under this agreement, whether by disbursement of a loan, issuance of a letter of credit, the funding of a Lease or otherwise, the Borrower shall deliver to the Bank, in form and substance satisfactory to the Bank:
Conditions Precedent to All Borrowings The obligation of each Lender to make an Advance on the occasion of each Borrowing and of the Issuing Lender to issue, increase, or extend any Letter of Credit shall be subject to the further conditions precedent that on the date of such Borrowing or the date of the issuance, increase, or extension of such Letter of Credit: (a) the following statements shall be true (and each of the giving of the applicable Notice of Borrowing, or Letter of Credit Application and the acceptance by the Borrower of the proceeds of such Borrowing or the issuance, increase, or extension of such Letter of Credit shall constitute a representation and warranty by the Borrower that on the date of such Borrowing or on the date of such issuance, increase, or extension of such Letter of Credit, as applicable, such statements are true): (i) the representations and warranties contained in Article IV of this Agreement and the representations and warranties contained in the Security Instruments, the Guaranties, and each of the other Loan Documents are true and correct in all material respects on and as of the date of such Borrowing or the date of the issuance, increase, or extension of such Letter of Credit, before and after giving effect to such Borrowing or to the issuance, increase, or extension of such Letter of Credit and to the application of the proceeds from such Borrowing, as though made on and as of such date except to the extent that any such representation or warranty expressly relates solely to an earlier date, in which case it shall have been true and correct in all material respects as of such earlier date; and (ii) no Default has occurred and is continuing or would result from such Borrowing or from the application of the proceeds therefrom, or would result from the issuance, increase, or extension of such Letter of Credit; and (b) the Administrative Agent shall have received such other approvals, opinions, or documents reasonably deemed necessary or desirable by any Lender as a result of circumstances occurring after the date of this Agreement, as any Lender through the Administrative Agent may reasonably request.
Conditions Precedent to Initial Credit Extension Bank’s obligation to make the initial Credit Extension is subject to the condition precedent that Bank shall have received, in form and substance satisfactory to Bank, such documents, and completion of such other matters, as Bank may reasonably deem necessary or appropriate, including, without limitation: (a) duly executed signatures to the Senior Loan Agreement and satisfaction of all conditions precedent thereto; (b) duly executed signatures to the Loan Documents; (c) the Operating Documents and long-form good standing certificates of Borrower certified by the Secretary of State of Delaware and each jurisdiction in which Borrower is qualified to conduct business, each as of a date no earlier than thirty (30) days prior to the Effective Date; (d) a secretary’s certificate of Borrower with respect to Borrower’s Operating Documents, incumbency, specimen signatures and resolutions authorizing the execution and delivery of this Agreement and the other Loan Documents to which it is a party; (e) duly executed pdf signatures to the completed Borrowing Resolutions for Borrower; (f) certified copies, dated as of a recent date, of financing statement searches, as Bank may request, accompanied by written evidence (including any UCC termination statements) that the Liens indicated in any such financing statements either constitute Permitted Liens or have been or, in connection with the initial Credit Extension, will be terminated or released; (g) the Perfection Certificate of Borrower, together with the duly executed signature thereto; (h) except as to Excluded Sites, a bailee’s waiver in favor of Bank for each location where Borrower maintains property with a third party, by each such third party, together with the duly executed signatures thereto; (i) a legal opinion (authority and enforceability) of Borrower’s counsel dated as of the Effective Date together with the duly executed pdf signature thereto; (j) evidence satisfactory to Bank that the insurance policies and endorsements required by Section 6.5 hereof are in full force and effect, together with appropriate evidence showing lender loss payable and/or additional insured clauses or endorsements in favor of Bank; and (k) payment of the fees and Bank Expenses then due as specified in Section 2.3 hereof.
Conditions Precedent to Initial Loans and Letters of Credit The obligation of each Lender to make the Loans requested to be made by it on the Closing Date and the obligation of each Issuer to Issue Letters of Credit on the Closing Date is subject to the satisfaction or due waiver in accordance with Section 11.1 (
Conditions Precedent to Each Extension of Credit The obligation of each Lender, the Swingline Bank and each LC Issuing Bank, as applicable, to make each Extension of Credit to be made by it hereunder (other than in connection with any Borrowing that would not increase the aggregate principal amount of Advances outstanding immediately prior to the making of such Borrowing) shall be subject to the satisfaction of the conditions precedent set forth in Section 3.01 and on the date of such Borrowing: (a) The following statements shall be true (and each of the giving of the applicable Notice of Borrowing and the acceptance by the applicable Borrower of the proceeds of any such Extension of Credit shall constitute a representation and warranty by such Borrower that on the date of such Extension of Credit such statements are true): (i) The representations and warranties of such Borrower contained in Section 4.01 (other than the representation and warranty in Section 4.01(e) and the representation and warranty set forth in the last sentence of Section 4.01(f)) are true and correct in all material respects on and as of the date of such Extension of Credit, before and after giving effect to such Extension of Credit and to the application of the proceeds therefrom, as though made on and as of such date, and (ii) No event has occurred and is continuing with respect to such Borrower, or would result from such Extension of Credit or from the application of the proceeds therefrom, that constitutes a Default. (b) The Administrative Agent shall have received such other approvals, opinions or documents as any Lender or LC Issuing Bank through the Administrative Agent may reasonably request.
Conditions Precedent to Initial Loans The Lenders shall not be required to fund the requested Loans or otherwise extend credit to Borrowers hereunder, until the date (“Closing Date”) that each of the following conditions (except to the extent that such conditions are permitted by each Lender to be satisfied on a post-closing basis pursuant to a post-closing agreement) has been satisfied: (a) Each Lender that requests issuance of a Note shall have received a Note executed by the Borrowers and delivered to each such Lender. Each other Loan Document shall have been duly executed and delivered to the Lenders by each of the signatories thereto, and each Obligor shall be in compliance with all terms thereof. (b) The Lenders shall have received UCC and Lien searches. (c) The Lenders shall have received fully-executed account control agreements for each Deposit Account (as defined in the Revolver Agreement) and Securities Account (as defined in the Revolver Agreement) (other than the Deposit Accounts at Bank of America, N.A. and JPMorgan Chase Bank, N.A. for which account control agreements shall be delivered pursuant to Section 9.1.16) subject to the “control” (for purposes of the UCC) of the Revolving Credit Agent and, upon the termination of the Revolver Agreement, the Collateral Agent, each in form and substance reasonably satisfactory to the Collateral Agent. (d) The Lenders shall have received certificates, in form and substance reasonably satisfactory to it, from a knowledgeable Responsible Officer of Borrower Representative certifying that, after giving effect to the Loans and transactions hereunder, (i) each Obligor is Solvent; (ii) no Default or Event of Default exists or would result from this Agreement or other Loan Documents becoming effective in accordance with its or their respective terms; (iii) the representations and warranties set forth in Section 8 are true and correct in all respects; and (iv) such Obligor has complied with all agreements and conditions to be satisfied by it under the Loan Documents. (e) The Lenders shall have received a certificate of a duly authorized officer of each Borrower, certifying (i) that attached copies of such Borrower’s Organic Documents are true and complete, and in full force and effect, without amendment except as shown, (ii) that an attached copy of resolutions (to the extent necessary under Applicable Law or applicable Organic Documents) authorizing execution and delivery of the Loan Documents is true and complete, and that such resolutions are in full force and effect, were duly adopted, have not been amended, modified or revoked, and constitute all resolutions adopted with respect to this credit facility, and (iii) to the title, name and signature of each Person authorized to sign the Loan Documents. The Lenders may conclusively rely on this certificate until it is otherwise notified by the applicable Obligor in writing. (f) The Lenders shall have received copies of the charter documents of each Obligor, certified as appropriate by the Secretary of State or another official of such Obligor’s jurisdiction of organization. The Lenders shall have received good standing certificates for each Obligor, issued by the Secretary of State or other appropriate official of such Obligor’s jurisdiction of organization. (g) The Lenders shall have received an opinion of Xxxxxxxx & Xxxxx LLP, counsel to the Borrowers, as to such matters as the Collateral Agent may reasonably request. (h) The Lenders shall have received a copy of the financial statements and the financial projections described in Section 8.1.7 hereof. (i) [Intentionally omitted.] (j) Borrowers shall have paid all fees, costs and expenses which are payable pursuant to the terms hereof to Lenders on the Closing Date. (k) The Collateral Agent shall have received Lien Waivers, each in form and substance reasonably satisfactory to the Collateral Agent, as it may request, in respect of (a) the following locations: (i) 000 Xxxxx Xxxxxxxxxx Xxxx, Xx. Xxxxxx, Utah 84770, and (ii) 13085, 13039 and 00000 Xxxx Xxxxxx Xxxxxx, Xxxx xx Xxxxxxxx, Xxxxxxxxxx, and (b) the imported goods that Xxxxxxxxxx International Service has been engaged by the Borrowers to facilitate the import of. (1) The Lenders shall have received evidence that (i) the Term A Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the 2009 Debenture Intercreditor Agreement, and (ii) the Term B Loans under this Agreement have been designated as “Additional Priority Permitted Debt” under the 2009 Debenture Intercreditor Agreement.
