Common use of Conditions Precedent to Funding Date Clause in Contracts

Conditions Precedent to Funding Date. The obligation of the Lenders to make the Loans on the Funding Date is subject only to the occurrence of the Effective Date and to the satisfaction (or waiver in accordance with Section 10.12) of each of the following conditions on or before the Commitment Termination Date: (a) The USCR Acquisition shall have been, or substantially concurrently with the borrowing of the Loans shall be, consummated in all material respects in accordance with the USCR Acquisition Agreement, without any waiver, amendment, modification or supplement thereof by the Borrower or any of its Affiliates or any consent or election thereunder with respect to any term or condition thereunder by the Borrower or any of its Affiliates that, in any such case, is material and adverse to the interests of the Lenders or the Administrative Agent (in either case, in their capacities as such) without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that (a) any reduction of the USCR Acquisition Consideration, when taken together with all prior reductions, of less than 12.5% in the aggregate will be deemed not to be (and any such reduction of 12.5% or more will be deemed to be) material and adverse to the interests of the Lenders or the Administrative Agent; provided, in the case of any such reduction of less than 12.5%, that the aggregate principal amount of the Commitments shall have been reduced on a dollar-for-dollar basis by the amount of any such reduction in the USCR Acquisition Consideration, and (b) any increase to the USCR Acquisition Consideration, when taken together with all prior increases, of less than 12.5% in the aggregate will be deemed not to be (and any such increase of 12.5% or more will be deemed to be, unless such increase is funded with the issuance of Equity Interests other than Disqualified Equity Interests and/or cash on hand of the Borrower) material and adverse to the interests of the Lenders and the Administrative Agent; (b) Each of the USCR Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, such representation or warranty shall be true and correct in all respects) after giving effect to the making of the Loans on the Funding Date; (c) No Company Material Adverse Effect (as defined in the USCR Acquisition Agreement (as in effect on the USCR Acquisition Agreement Effective Date)) shall have occurred since the USCR Acquisition Agreement Effective Date; (d) The Administrative Agent shall have received (i) U.S. GAAP audited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income, equity and cash flows for the three most recent fiscal years ended at least 60 days prior to the Funding Date and (ii) U.S. GAAP unaudited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income and cash flows for each subsequent fiscal quarter ended at least 40 days before the Funding Date (excluding the fourth quarter of any such fiscal year); provided that in each case the financial statements required to be delivered by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided further that the Borrower’s filing of any required audited financial statements with respect to the Borrower on Form 10-K or required unaudited financial statements with respect to the Borrower on Form 10-Q, in each case, will satisfy the requirements under subclauses (i) or (ii), as applicable, of this clause (d); (e) The Administrative Agent shall have received a duly executed Request for Loan with disbursement instructions attached thereto; and (f) The Administrative Agent and the Lenders shall have received payment of all fees payable to the Administrative Agent and the Lenders required to be paid on or prior to the Funding Date, and, to the extent invoiced at least three (3) Business Days prior to the Funding Date, payment of fees and expenses of counsel to the Administrative Agent. The Borrower hereby agrees that the delivery of any Request for Loan hereunder or any telephonic request hereunder shall be deemed to be the certification of the Authorized Signatory thereof that all of the conditions set forth in this Section 4.2 have been, or will prior to or substantially concurrently with the funding of the Loans be, satisfied. Notwithstanding the foregoing, if any of the conditions set forth above are not satisfied, such conditions may be waived in accordance with Section 10.12. Notwithstanding anything in this Agreement or anything else to the contrary, (i) the only representations the accuracy of which shall be a condition to the availability of the Loans on the Funding Date shall be (a) the USCR Acquisition Agreement Representations and (b) the Specified Representations (in each case as and to the extent set forth in Section 4.2(b)) and (ii) the Loans shall be available on the Funding Date if the conditions set forth in this Section 4.2 are satisfied or waived in accordance with Section 10.12 (this sentence, the “Limited Conditionality Provision”).

Conditions Precedent to Funding Date. The obligation of the Lenders each Bank to make the Loans on the Funding Date a Loan hereunder is subject only to the occurrence of the Effective Date and to the satisfaction (or waiver in accordance with Section 10.12) of each of the following conditions on or before the Commitment Termination Dateprecedent: (a) §11.1. The USCR Specified Acquisition shall have been, or be consummated substantially concurrently with the borrowing funding of the Loans shall be, consummated in all material respects on the Funding Date in accordance with the USCR Specified Acquisition Agreement, without any waiverand the Specified Acquisition Agreement shall not have been amended or modified, amendment, modification and no condition shall have been waived or supplement thereof by the Borrower or any of its Affiliates or any consent or election thereunder with respect to any term or condition thereunder by the Borrower or any of its Affiliates thatgranted, in any such case, respect that is material and materially adverse to the interests of the Lenders Banks or the Administrative Agent (in either case, in their capacities as such) Arranger without the Majority Banks’ prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed consent; provided that (a) any reduction of the USCR Acquisition Consideration, when taken together with all prior reductions, of less than 12.5% in the aggregate will be deemed not to be (and any such reduction of 12.5% or more will be deemed to be) material and adverse to the interests of the Lenders or the Administrative Agent; provided, in the case of any such reduction of less than 12.5%, that the aggregate principal amount of the Commitments shall have been reduced on a dollar-for-dollar basis by the amount of any such reduction in the USCR Acquisition Consideration, and (b) any increase to the USCR Acquisition Considerationincrease, when taken together with all prior increases, of less than 12.5up to 10% in the aggregate will be deemed original consideration for the Specified Acquisition shall not to be (and any such increase of 12.5% or more will be deemed to be, unless such increase is funded with the issuance of Equity Interests other than Disqualified Equity Interests and/or cash on hand of the Borrower) material and be materially adverse to the interests of the Lenders Banks or the Arranger and shall not require the Administrative Agent; consent of the Majority Banks, (b) Each any decrease, when taken together with all prior decreases, of less than 10% of the USCR original consideration of the Specified Acquisition Agreement Representations shall not be deemed to be materially adverse to the interests of the Banks or the Arranger and shall not require the consent of the Majority Banks so long as any such reduction in the consideration for the Specified Acquisition shall reduce Dollar-for-Dollar the Commitments and (c) increases or decreases, when taken together with all prior increases or decreases, as applicable, of more than 10% in the original consideration for the Specified Acquisition shall be deemed to be materially adverse to the interests of the Banks and the Specified Representations Arranger and shall require the consent of the Majority Banks. §11.2. The Administrative Agent shall have received a certificate, dated the Funding Date and signed by the chief financial officer or vice president & treasurer (or other executive officer) of the Borrower, certifying that the conditions set forth in §11.1 and §11.4 have been satisfied. §11.3. The Administrative Agent shall have received a solvency certificate, dated the Funding Date and signed by the chief financial officer of the Borrower, substantially in the form of Exhibit E. §11.4. On the Funding Date, immediately after giving effect to the consummation of the Transactions, (a) the representations and warranties of the Loan Parties contained in this Agreement shall be true and correct in all material respects (provided that if and in all respects to the extent any such representation or and warranty is already includes a qualified by materiality or material adverse effect qualifiera reference to Material Adverse Effect) on and as of the Funding Date, except to the extent that such representation or warranty representations and warranties specifically refer to an earlier date, in which case they shall be true and correct in all respects) after giving effect material respects (and in all respects to the making extent any such representation and warranty is already qualified by materiality or a reference to Material Adverse Effect) as of such earlier date and (b) no Default or Event of Default shall have occurred and be continuing as of the Loans Funding Date. §11.5. The Borrower shall have paid the fees payable by the Borrower on the Funding Date; (c) No Company Material Adverse Effect (as defined in the USCR Acquisition Agreement (as in effect on the USCR Acquisition Agreement Effective Date)) shall have occurred since the USCR Acquisition Agreement Effective Date; (d) The Administrative Agent shall have received (i) U.S. GAAP audited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income, equity and cash flows for the three most recent fiscal years ended at least 60 days prior to the Funding Date and (ii) U.S. GAAP unaudited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income and cash flows for each subsequent fiscal quarter ended at least 40 days before the Funding Date (excluding the fourth quarter of any such fiscal year); provided that in each case the financial statements required to be delivered by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided further that the Borrower’s filing of any required audited financial statements with respect to the Borrower on Form 10-K or required unaudited financial statements with respect to the Borrower on Form 10-Q, in each case, will satisfy the requirements under subclauses (i) or (ii), as applicable, of this clause (d); (e) The Administrative Agent shall have received a duly executed Request for Loan with disbursement instructions attached thereto; and (f) The Administrative Agent and the Lenders shall have received payment of all fees payable to the Administrative Agent and the Lenders required to be paid on or prior to the Funding Date, and, to the extent invoiced at least three (3) Business Days prior to the Funding Date, payment of fees and expenses of counsel to the Administrative Agent, the Arranger and the Banks pursuant to the Fee Letter and the invoiced expenses reimbursable by the Borrower pursuant to this Agreement. §11.6. The Borrower hereby agrees that the delivery of any Request for Loan hereunder Acquired Company Credit Facilities Refinancing shall have been consummated or any telephonic request hereunder shall be deemed to be the certification of the Authorized Signatory thereof that all of the conditions set forth in this Section 4.2 have been, or will prior to or consummated substantially concurrently with the funding of the Loans be, satisfied. Notwithstanding the foregoing, if any of the conditions set forth above are not satisfied, such conditions may be waived in accordance with Section 10.12. Notwithstanding anything in this Agreement or anything else to the contrary, (i) the only representations the accuracy of which shall be a condition to the availability of the Loans on the Funding Date Date, and the Administrative Agent shall have received customary release, discharge and termination documentation evidencing the consummation thereof. The Administrative Agent shall notify the Borrower and the Banks of the occurrence of the Funding Date, and such notice shall be (a) the USCR Acquisition Agreement Representations conclusive and (b) the Specified Representations (in each case as and to the extent set forth in Section 4.2(b)) and (ii) the Loans shall be available binding on the Funding Date if the conditions set forth in this Section 4.2 are satisfied or waived in accordance with Section 10.12 (this sentence, the “Limited Conditionality Provision”)all parties hereto.

Conditions Precedent to Funding Date. The obligation of the Lenders to make the Loans on the Funding Date is subject only to the occurrence of the Effective Date and to the satisfaction (or waiver in accordance with Section 10.12) of each of the following conditions on or before the Commitment Termination Date: (a) The USCR Acquisition shall have been, or substantially concurrently with the borrowing of the Loans shall be, consummated in all material respects in accordance with the USCR Acquisition Agreement, without any waiver, amendment, modification or supplement thereof by the Borrower or any of its Affiliates or any consent or election thereunder with respect to any term or condition thereunder by the Borrower or any of its Affiliates that, in any such case, is material and adverse to the interests of the Lenders or the Administrative Agent (in either case, in their capacities as such) without the prior written consent of the Administrative Agent (such consent not to be unreasonably withheld, delayed or conditioned), it being understood and agreed that (a) any reduction of the USCR Acquisition Consideration, when taken together with all prior reductions, of less than 12.5% in the aggregate will be deemed not to be (and any such reduction of 12.5% or more will be deemed to be) material and adverse to the interests of the Lenders or the Administrative Agent; provided, in the case of any such reduction of less than 12.5%, that the aggregate principal amount of the Commitments shall have been reduced on a dollar-for-dollar basis by the amount of any such reduction in the USCR Acquisition Consideration, and (b) any increase to the USCR Acquisition Consideration, when taken together with all prior increases, of less than 12.5% in the aggregate will be deemed not to be (and any such increase of 12.5% or more will be deemed to be, unless such increase is funded with the issuance of Equity Interests other than Disqualified Equity Interests and/or cash on hand of the Borrower) material and adverse to the interests of the Lenders and the Administrative Agent; (b) Each of the USCR Acquisition Agreement Representations and the Specified Representations shall be true and correct in all material respects (provided that if any representation or warranty already includes a materiality or material adverse effect qualifier, such representation or warranty shall be true and correct in all respects) after giving effect to the making of the Loans on the Funding Date; (c) No Company Material Adverse Effect (as defined in the USCR Acquisition Agreement (as in effect on the USCR Acquisition Agreement Effective Date)) shall have occurred since the USCR Acquisition Agreement Effective Date; (d) The Administrative Agent shall have received (i) U.S. GAAP audited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income, equity and cash flows for the three most recent fiscal years ended at least 60 days prior to the Funding Date and (ii) U.S. GAAP unaudited consolidated balance sheets of the Borrower and its Subsidiaries and the related consolidated statements of comprehensive income and cash flows for each subsequent fiscal quarter ended at least 40 days before the Funding Date (excluding the fourth quarter of any such fiscal year); provided that in each case the financial statements required to be delivered by this clause (d) shall meet the requirements of Regulation S-X under the Securities Act, and all other accounting rules and regulations of the Securities and Exchange Commission promulgated thereunder applicable to a registration statement under such Act on Form S-3; provided further that the Borrower’s filing of any required audited financial statements with respect to the Borrower on Form 10-K or required unaudited financial statements with respect to the Borrower on Form 10-Q, in each case, will satisfy the requirements under subclauses (i) or (ii), as applicable, of this clause (d);; NAI-1527873932v11527873932v3 (e) The Administrative Agent shall have received a duly executed Request for Loan with disbursement instructions attached thereto; and (f) The Administrative Agent and the Lenders shall have received payment of all fees payable to the Administrative Agent and the Lenders required to be paid on or prior to the Funding Date, and, to the extent invoiced at least three (3) Business Days prior to the Funding Date, payment of fees and expenses of counsel to the Administrative Agent. The Borrower hereby agrees that the delivery of any Request for Loan hereunder or any telephonic request hereunder shall be deemed to be the certification of the Authorized Signatory thereof that all of the conditions set forth in this Section 4.2 have been, or will prior to or substantially concurrently with the funding of the Loans be, satisfied. Notwithstanding the foregoing, if any of the conditions set forth above are not satisfied, such conditions may be waived in accordance with Section 10.12.  Notwithstanding anything in this Agreement or anything else to the contrary, (i) the only representations the accuracy of which shall be a condition to the availability of the Loans on the Funding Date shall be (a) the USCR Acquisition Agreement Representations and (b) the Specified Representations (in each case as and to the extent set forth in Section 4.2(b)) and (ii) the Loans shall be available on the Funding Date if the conditions set forth in this Section 4.2 are satisfied or waived in accordance with Section 10.12 (this sentence, the “Limited Conditionality Provision”)..