Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date: (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower: (A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption; (B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists; (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility; (iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived; (iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility; (v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request; (vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and (vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 5 contracts
Samples: Credit Agreement (Safehold Inc.), Credit Agreement (Istar Inc.), Credit Agreement (Istar Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Borrower both Borrowers dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
each Borrower (A) either (1i) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2ii) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date that (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except to the extent that any representation or if warranty that is qualified by “materiality,” “material adverse effect” or similar language, materiality shall be true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2B) no Default exists;
(ii) in as of the case of an Incremental Term Loan FacilityIncrease Effective Date, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis and immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an no Default exists. In connection with any Incremental Revolving Increase, each L/C Issuer the Borrowers shall prepay any Committed Revolving Loans outstanding on the Increase Effective Date (and (ypay any additional amounts required pursuant to Section 3.05) written confirmation to the extent necessary to keep the outstanding Committed Revolving Loans ratable with any revised Applicable Percentages arising from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, any non-ratable increase in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Commitments under this Section 2.16. The Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Sabra Health Care REIT, Inc.), Credit Agreement (Sabra Health Care REIT, Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, Increase or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Istar Inc.), Credit Agreement (Safehold Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement the Facilities to an amount at least equal to the Incremental Revolving Increase amount$1,000,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
, and (By) in the case of the Parent Borrower, certifying thatthat on the Increase Effective Date, immediately before and after giving effect to such Incremental Facilityincrease, (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except (I) 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 as of such earlier date, (II) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (I)) after giving effect to such qualification except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that (III) for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Parent Borrower and each Eligible Assignee, if any, Assignee that is becoming a Lender in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer Issuer, and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Revolving Credit Commitment will be increasedincreased or the amount of term loans to be made by such Lender, in as the case of an Incremental Revolving Increasemay be, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, Issuer in the case of an Incremental Term Loan Facility;
Revolving Increase, (viii) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent Parent Borrower shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable pay such fees to the Administrative Agent), addressed to for its own account and for the Administrative Agent and each Lenderbenefit of the Lenders participating in the increase, as are agreed mutually at the time and shall have paid the fee required to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note be paid pursuant to any new Lender joining on the Increase Effective Date, if requested; and
Fee Letter in connection therewith and (viiiv) upon the reasonable request of any lender who will be a Lender under such Incremental Facility made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Parent Borrower shall have provided to such Lenderlender, and such Lender lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Act, Act and the Beneficial Ownership RegulationRegulation (including a Beneficial Ownership Certification, if requested), in each case at least five (5) days Business Days prior to the applicable such Increase Effective Date. The Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested.
Appears in 2 contracts
Samples: Credit Agreement (Kennedy-Wilson Holdings, Inc.), Credit Agreement (Kennedy-Wilson Holdings, Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to In each case, the effectiveness Incremental Facility shall become effective as of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
; provided that (i) no Default or Event of Default shall exist on such Increase Effective Date both before and after giving effect to such increase, (ii) before and after giving effect to such increase, each of the representations and warranties made by or on behalf of any Group Member in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on such Increase Effective 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 (or, if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date and except that for purposes of this Section 2.14, the representations and warranties contained in Section 6.1(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 8.1(a) and (b), respectively), (iii) after giving effect to such increase and any Loans to be made on such Increase Effective Date, Availability shall be equal to or greater than $0, (iv) the Borrower shall deliver have delivered to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) Date, signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date$1,675,000,000, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(iiy) in the case of an Incremental Term Loan Facilitythe Borrower, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect certifying to the closing of such Incremental Term Loan Facility;
Administrative Agent that the conditions in clauses (i) through (iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
above have been satisfied, (ivv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement for each Person (other than a Lender), if any, participating in such increase, which Joinder Agreement shall be duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be Person and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving Increase, each L/C Issuer the Swing Line Lender and the Letter of Credit Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loan Term Loans and/or Term Loan Commitments and/or loans or commitments with respect to an Additional TL Tranche to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(vvi) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
, (vivii) the Borrower shall provide a Note to if requested by any new Lender joining on the applicable Increase Effective Date, if requested; and
the Administrative Agent shall have received a Note executed by the Borrower in favor of such new Lender, (viiviii) the Borrower shall have paid such fees to the Administrative Agent, for its own account and for the benefit of the Lenders participating in the increase, as are agreed mutually at the time and invoiced at least two (2) Business Days prior to the applicable Increase Effective Date and shall have paid any fees required to be paid pursuant to the Fee Letter in connection therewith, (ix) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the USA PATRIOT Act, Act and the Beneficial Ownership Regulation, in each case at least five (5) days Business Days prior to the applicable such Increase Effective DateDate and (x) the conditions to the making of an extension of credit set forth in Section 7.2 (other than the delivery of a Committed Loan Notice in the case of an Incremental Revolving Increase) shall be satisfied or waived.
Appears in 2 contracts
Samples: Credit Agreement (Americold Realty Trust), Credit Agreement (Americold Realty Trust)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the “Specified Representations” and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if except to the extent qualified by “materiality,” “material adverse effect” or similar language, as to materiality in which case they are true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects, as applicable) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall (A) have a final maturity no earlier than the then latest Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waived;mandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Facilities), unless accompanied by at least a ratable payment of the Term Loans; and
(iv) to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (xA) a New Lender Joinder Agreement duly executed by concern pricing (including interest rates, rate floors, fees, OID or other fees), the Borrower amortization schedule, commitment reductions, prepayments and each Eligible Assignee, if any, any prepayment premiums applicable to such Incremental Facility or (B) apply after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is becoming a Lender in connection with added for the benefit of any such Incremental Facility, which New Lender Joinder Agreement no consent shall be acknowledged and consented to in writing by required from the Administrative Agent and, in to the case extent that such financial maintenance covenant is also added for the benefit of an the existing Term Loan Facility and any existing Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each facility existing Lender, if any, participating in at the time such subsequent Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agentis incurred), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 2 contracts
Samples: Credit Agreement (Contura Energy, Inc.), Credit Agreement (Contura Energy, Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to In each case, the effectiveness Incremental Facility shall become effective as of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
; provided that (i) no Default or Event of Default shall exist on such Increase Effective Date both before and after giving effect to such increase, (ii) before and after giving effect to such increase, each of the representations and warranties made by or on behalf of any Group Member in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on such Increase Effective 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 (or, if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date and except that for purposes of this Section 2.14, the representations and warranties contained in Section 6.1(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 8.1(a) and (b), respectively), (iii) after giving effect to such increase and any Loans to be made on such Increase Effective Date, Availability shall be equal to or greater than $0, (iv) the Borrower shall deliver have delivered to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) Date, signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date$1,250,000,000, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(iiy) in the case of an Incremental Term Loan Facilitythe Borrower, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect certifying to the closing of such Incremental Term Loan Facility;
Administrative Agent that the conditions in clauses (i) through (iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
above have been satisfied, (ivv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement for each Person (other than a Lender), if any, participating in such increase, which Joinder Agreement shall be duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be Person and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving Increase, each L/C Issuer the Swing Line Lender and the Letter of Credit Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loan Term Loans and/or Term Loan Commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(vvi) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
, (vivii) the Borrower shall provide a Note to if requested by any new Lender joining on the Increase Effective Date, if requested; and
the Administrative Agent shall have received a Note executed by the Borrower in favor of such new Lender, (viiviii) upon the reasonable request Borrower shall have paid such fees to the Administrative Agent, for its own account and for the benefit of any Lender made the Lenders participating in the increase, as are agreed mutually at the time and invoiced at least ten two (102) days Business Days prior to the applicable Increase Effective Date, the Borrower Date and shall have provided paid any fees required to such Lenderbe paid pursuant to the Fee Letter in connection therewith, and such Lender (ix) the conditions to the making of an extension of credit set forth in Section 7.2 (other than the delivery of a Committed Loan Notice in the case of an Incremental Revolving Increase) shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Dateor waived.
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Samples: Credit Agreement (Americold Realty Trust), Credit Agreement (Americold Realty Trust)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower Borrowers and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall shall, in order to become effective, be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall shall, in order to become effective, be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(ii) each of the Borrowers shall have delivered to the Administrative Agent a certificate of such Borrower dated as of the Increase Effective Date signed by a Responsible Officer of such Borrower: (A) either (1) certifying and attaching the resolutions adopted by each Credit Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Restatement Effective Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to $2,750,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption; and (B) certifying that, before and after giving pro forma effect to such Incremental Facility (including, all Credit Extensions to occur on such Increase Effective Date and the use of proceeds thereof), (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, in the case of the representations and warranties in Sections 5.14(b) and 5.16(a) and any representation and warranty that is qualified by materiality or Material Adverse Effect, in all respects) on such Increase Effective Date (except to the extent such representations and warranties relate to an earlier date or given period (in which case such representations and warranties shall have been true and correct in all material respects as of such respective date or for such respective period, as the case may be (or, in the case of the representations and warranties in Sections 5.14(b) and 5.16(a) and any representation and warranty that is qualified by materiality or Material Adverse Effect, in all respects) and except that for purposes of this Section 2.16, the representations and warranties contained in Sections 5.05(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 6.01(a) and (b), respectively and (2) no Default exists or would result therefrom;
(iii) on or prior to each Increase Effective Date, the Borrowers shall pay to the Agents and to the Lenders providing the related Incremental Facility such fees as are payable to such Persons in connection with such Incremental Facility pursuant to the Fee Letters and as otherwise agreed to by the relevant parties in connection with such Incremental Facility;
(iv) if requested by a new Lender participating in such Incremental Facility, the Borrowers shall provide a Note payable to such new Lender;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental FacilityAgent, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent Agent, each Lender and each LenderL/C Issuer, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of reasonably requested by any Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Parent Borrower shall have provided (or cause to have been provided) to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Patriot Act, the Canadian AML Acts and the Beneficial Ownership Regulation, in each case at least five (5five) days Business Days prior to such effectiveness date; and
(vii) the applicable Increase Effective DateBorrowers shall have delivered or caused to be delivered such other assurances, certificates, documents, consents or opinions as the Administrative Agent, any of Lenders or other Eligible Assignees participating in such Incremental Facility, reasonably may require.
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Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Parent Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1x) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2y) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, that (1) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (or if except to the extent that any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, materiality shall be true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date (other than the representations in Section 5.05(c) and Section 5.18, which shall be made only as of the Closing Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2) no Default exists;
(ii) in as of the case of an Incremental Term Loan FacilityIncrease Effective Date, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis and immediately after giving effect to the closing of such Incremental Term Loan Facility;
, no Default exists and (iiiii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in . In connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an any Incremental Revolving Increase, each L/C Issuer the Borrowers shall prepay any Committed Revolving Loans outstanding on the Increase Effective Date (and (ypay any additional amounts required pursuant to Section 3.05) written confirmation to the extent necessary to keep the outstanding Committed Revolving Loans ratable with any revised Applicable Percentages arising from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, any non-ratable increase in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower Commitments under this Section 2.16. The Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to In each case, the effectiveness Incremental Facility shall become effective as of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
; provided that (i) no Default or Event of Default shall exist on such Increase Effective Date both before and after giving effect to such increase, (ii) before and after giving effect to such increase, each of the representations and warranties made by or on behalf of any Group Member in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on such Increase Effective 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 (or, if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date and except that for purposes of this Section 2.14, the representations and warranties contained in Section 6.1(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 8.1(a) and (b), respectively), (iii) after giving effect to such increase and any Loans to be made on such Increase Effective Date, Availability shall be equal to or greater than $0, (iv) the Parent Borrower shall deliver have delivered to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) Date, signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date$1,675,000,000, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(iiy) in the case of an Incremental Term Loan Facilitythe Parent Borrower, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect certifying to the closing of such Incremental Term Loan Facility;
Administrative Agent that the conditions in clauses (i) through (iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
above have been satisfied, (ivv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement for each Person (other than a Lender), if any, participating in such increase, which Joinder Agreement shall be duly executed by the Parent Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be Person and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving Increase, each L/C Issuer the Swing Line Lender and the Letter of Credit Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loan Term Loans and/or Term Loan Commitments and/or loans or commitments with respect to an Additional TL Tranche to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(vvi) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
, (vivii) the Borrower shall provide a Note to if requested by any new Lender joining on the applicable Increase Effective Date, if requested; and
the Administrative Agent shall have received a Note executed by the BorrowerBorrowers in favor of such new Lender, (viiviii) the BorrowerBorrowers shall have paid such fees to the Administrative Agent, for its own account and for the benefit of the Lenders participating in the increase, as are agreed mutually at the time and invoiced at least two (2) Business Days prior to the applicable Increase Effective Date and shall have paid any fees required to be paid pursuant to the Fee Letter in connection therewith, (ix) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower BorrowerBorrowers shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the USA PATRIOT Act, Act and the Beneficial Ownership Regulation, in each case at least five (5) days Business Days prior to the applicable such Increase Effective DateDate and (x) the conditions to the making of an extension of credit set forth in Section 7.2 (other than the delivery of a Committed Loan Notice in the case of an Incremental Revolving Increase) shall be satisfied or waived.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Parent Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1x) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2y) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, that (1) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (or, in the case of Sectionthe representations and warranties in Sections 5.16 and 5.22 or if any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date (other than the representations in Section 5.05(c) and Section 5.18, which shall be made only as of the Closing Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or, in the case of Sectionthe representations and warranties in Sections 5.16 and 5.22 or if any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2) as of the Increase Effective Date, and immediately after giving effect to such Incremental Facility, no Default exists;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower Borrowers and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment Commitments and/or Loans will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(viiiii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, antiAnti-money-laundering lawsMoney Laundering Law, including, without limitation, including the PATRIOT Act, Patriot Act and the Beneficial Ownership Regulation, and the Canadian AML Acts, in each case at least five (5) days prior to the applicable Increase Effective Date;
(iv) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall deliver to each Lender that is proposing to participate in such Incremental Facility and so requests, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to such Borrower at least five days prior to the applicable Increase Effective Date;
(v) the Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested;
(vi) if requested by the Administrative Agent or any Lender participating in such Incremental Facility, the Administrative Agent shall have received a favorable opinion of counsel (which counsel shall be reasonably acceptable to Administrative Agent), addressed to Administrative Agent and each Lender, as to such customary matters concerning the increase in the aggregate amount of the Facilities as Administrative Agent may reasonably request;
(vii) the Borrowers shall pay such fees to the Administrative Agent, for the benefit of the Lenders providing such Incremental Facility, as determined by the Borrowers and the Lenders providing such Incremental Facility at the time of such Incremental Facility;
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Lenders providing such Incremental Facility reasonably may require; and
(ix) such other conditions of the Lenders providing such Incremental Facility shall be satisfied or waived.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated (A) as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the “Specified Representations” and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if except to the extent qualified by “materiality,” “material adverse effect” or similar language, as to materiality in which case they are true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects, as applicable) as of such earlier date, and except that for purposes (B) (1) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), the representations and warranties contained in subsections (a) and (b) of (relating to Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b7.04), respectively(f), (g) or (k) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the satisfaction of Section 6.01 such conditions shall not be required, and (2) otherwise, no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall (A) have a final maturity no earlier than the then latest Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waived;mandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Facilities), unless accompanied by at least a ratable payment of the Term Loans; and
(iv) to the Administrative Agent extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall have received be reasonably satisfactory to the Required Lenders (xexcluding Incremental Lenders), unless such terms (A) a New Lender Joinder Agreement duly executed by concern pricing (including interest rates, rate floors, fees, original issue discount or other fees), the Borrower amortization schedule, commitment reductions, prepayments and each Eligible Assignee, if any, any prepayment premiums applicable to such Incremental Facility or (B) apply after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is becoming a Lender in connection with added for the benefit of any such Incremental Facility, which New Lender Joinder Agreement no consent shall be acknowledged required from the Required Lenders (excluding Incremental Lenders) to the extent that such financial maintenance covenant is also added for the benefit of the existing Term Loan Facility and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each any existing Lender, if any, participating in such Incremental Facility of existing at the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by time such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the subsequent Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Dateis incurred).
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount$500,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving pro forma effect to such Incremental FacilityFacility (including, all Credit Extensions to occur on such Increase Effective Date and the use of proceeds thereof), (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or or, in the case of Section 5.15(b), in all respects, and if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or or, in the case of Section 5.15(b), in all respects, and if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and 6.01, (2) no Default existsexists or would result therefrom, and (3) Availability equals or exceeds zero ($0) (in the case of an Incremental Term Loan Facility, on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility);
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each the L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each the L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(viv) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental FacilityAgent, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viv) if requested by a new Lender participating in such Incremental Facility, the Borrower shall provide a Note payable to any such new Lender joining on the Increase Effective Date, if requested; andLender;
(viivi) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such any requesting Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, antiAnti-moneyMoney-laundering lawsLaundering Laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five ;
(5vii) days prior the Borrower shall have paid to the Arranger, for its own account, the fee required to be paid pursuant to the Fee Letter and any other applicable Increase Effective Datefees and expenses; and
(viii) the conditions to the making of a Credit Extension set forth in Section 4.02 (other than Section 4.02(c) and (d)) shall be satisfied or waived.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facilityincrease, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Credit Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Credit Party (A) either (1x) certifying and attaching the resolutions adopted by each Loan such Credit Party approving or consenting to such Incremental Facility or increase, and (2y) certifying thatin the case of Borrower, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facilityincrease, (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections clauses (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
exists or would result therefrom, and (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, including the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five ten (510) days Business Days prior to the applicable Increase Effective Date and (y) at least ten (10) Business Days prior to the Increase Effective Date, any Credit Party that qualifies as a “legal entity customer” under the Beneficial Ownership Regulation shall have delivered, to each Lender that so requests, a Beneficial Ownership Certification in relation to such Credit Party.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V 6 (or, in the case of any Incremental Facility being requested in connection with a Limited Condition Acquisition, only certain customary specified representations and acquisition agreement representations to the other Loan Documents extent acceptable to the Lenders providing such Incremental Facility) are true and correct in all material respects (or if or, in the case of any representation and warranty that is qualified by as to “materiality,” “material adverse effectMaterial Adverse Change” or similar language, in all respects (after giving effect to such qualification)respects) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of (A) if such Incremental Term Loan Facility;
Facility is being requested in connection with a Limited Condition Acquisition, no Default or Event of Default under Sections 9.01(a), (iiik), or (l) (and no other Default or Event of Default the conditions absence of which is a condition required by the Lenders lenders providing such Incremental Facility shall be satisfied Facility) has occurred or waived;
is continuing or would immediately result therefrom, (ivB) otherwise, no Default or Event of Default has occurred or is continuing or would immediately result therefrom and (C) the Administrative Agent shall have received a certificate dated as of such date and executed by a Responsible Officer of the Borrower as to the foregoing;
(xii) such Incremental Facility shall have the same guarantees as, and be secured on a New Lender Joinder Agreement duly executed pari passu basis with, the Obligations; provided that, if agreed by the Borrower and each Eligible Assigneethe relevant Incremental Lenders, if anythe Incremental Facility (other than any Incremental Term Loan Increase) may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Incremental Facility (other than any Incremental Term Loan Increase) may rank junior to the Liens securing the Term Loans; provided, further, that is becoming a Lender in connection with such any junior or less secured Incremental Facility, which New Lender Joinder Agreement Facility shall be acknowledged and consented subject to in writing by an intercreditor agreement reasonably satisfactory to the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and Agent;
(yiii) written confirmation from each existing Lender, if any, participating in such Incremental Facility shall not be secured by a Lien on any assets of the amount Borrower and its Subsidiaries that does not also secure the Obligations, and, to the extent guaranteed, such Incremental Facility shall not be guaranteed by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount any Subsidiary that is not a Guarantor of the term loan to be made by such Lender, in the case of an Incremental Term Loan FacilityObligations;
(viv) if requested such Incremental Facility shall (A) have a final maturity no earlier than the Latest Maturity Date, (B) have a Weighted Average Life to Maturity no shorter than each Class of Term Loans then outstanding and (C) not have any terms which require it to be voluntarily or mandatorily prepaid (other than scheduled amortization) prior to the repayment in full of the outstanding Term Loans pursuant to Section 5.06 hereof, unless accompanied by the Administrative Agent or any new Lender or Lender participating at least a ratable payment of such Term Loans;
(A) except as otherwise specified in the documentation for the applicable Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be legal opinions, board resolutions and other closing certificates reasonably acceptable to requested by the Administrative Agent), addressed Agent and consistent with those delivered on the Closing Date under Section 7.01 and (B) all fees and expenses owing in respect of such Incremental Facility to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;Lenders shall have been paid in full; and
(vi) the Borrower terms of any Incremental Term Loan Increase (other than with respect to original issue discount or upfront fees) shall provide a Note be identical to any new Lender joining the Initial Term Loans funded on the Increase Effective Closing Date, if requested; and;
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the extent such terms and documentation for the Incremental Facility (other than any Incremental Term Loan Increase covered in clause (vi) above) are not substantially consistent with the applicable Increase Effective DateLoan Documents, the Borrower shall have provided to such Lender, and such Lender they shall be reasonably satisfied withsatisfactory to the Administrative Agent, unless such terms (A) are more favorable to the documentation and other information so requested Borrower, taken as a whole, than the Loan Documents in connection with applicable “know your customer” rules and regulationsrespect of the outstanding Term Loans (or the Lenders under the outstanding Term Loans receive the benefit of the more restrictive terms, anti-money-laundering lawswhich, includingfor avoidance of doubt, may be provided to them without limitation, the PATRIOT Act, and the Beneficial Ownership Regulationtheir consent), in each case case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, interest rate floors, interest rate margins, fees, original issue discount or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the Latest Maturity Date at least five the time such Incremental Facility is made available (5) days prior it being understood to the applicable Increase Effective Dateextent that any financial maintenance covenant is added for the benefit of any such Incremental Facility, no consent shall be required from the Administrative Agent to the extent that such financial maintenance covenant is also added for the benefit of the outstanding Term Loans).
Appears in 1 contract
Samples: Credit Agreement (Arch Coal Inc)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Commitment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Revolving Credit Facility and Term Loan Facility;
(iii) in the conditions of the Lenders providing event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Term Loan Facility Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans, unless accompanied by at least a ratable payment of the Term Loans;
(iv) in the event such Incremental Facility is an Incremental Revolving Facility, such Incremental Facility shall have a final maturity no earlier than the Revolving Credit Facility Maturity Date and shall require no amortization or mandatory commitment reduction prior to the Revolving Credit Facility Maturity Date, unless accompanied by at least ratable amortization or mandatory commitment reduction, as applicable, of the Revolving Loans; and
(i) to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (xA) are more favorable to the Borrower, taken as a New Lender Joinder Agreement duly executed by whole, than the Borrower and each Eligible Assignee, if any, that is becoming a Lender Loan Documents in connection with such Incremental respect of the Revolving Credit Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving IncreaseFacility, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of or the amount by which its Commitment will be increasedTerm Loan Facility, in the case of an the Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, Term Facility (or the amount of Lenders under the term loan to be made by such Lender, in the case of an Incremental Revolving Credit Facility or Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning applicable, receive the Incremental Facility as benefit of the Administrative Agent more restrictive terms, which, for avoidance of doubt, may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have be provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, them without limitation, the PATRIOT Act, and the Beneficial Ownership Regulationtheir consent), in each case at least five case, as certified by a Responsible Officer of the Borrower in good faith, (5B) days prior concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the applicable Increase Effective Maturity Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated (A) as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the “Specified Representations” and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if except to the extent qualified by “materiality,” “material adverse effect” or similar language, as to materiality in which case they are true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects, as applicable) as of such earlier datedate (provided that if a Surviving Parent exists on the Incremental Facility Effective Date, and except that for purposes of this Section 2.14, the such representations and warranties contained in subsections (a) shall apply to the Surviving Parent to the same extent that they apply to any other Loan Party), and (bB) (1) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (bDefault under Sections 8.01(a), respectively(f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the satisfaction of Section 6.01 such conditions shall not be required, and (2) otherwise, no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrowers and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall (A) have a final maturity no earlier than the then latest Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waived;mandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Facilities), unless accompanied by at least a ratable payment of the Term Loans; and
(iv) to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (xA) a New Lender Joinder Agreement duly executed by concern pricing (including interest rates, rate floors, fees, OID or other fees), the Borrower amortization schedule, commitment reductions, prepayments and each Eligible Assignee, if any, any prepayment premiums applicable to such Incremental Facility or (B) apply after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is becoming a Lender in connection with added for the benefit of any such Incremental Facility, which New Lender Joinder Agreement no consent shall be acknowledged and consented to in writing by required from the Administrative Agent and, in to the case extent that such financial maintenance covenant is also added for the benefit of an Incremental Revolving Increase, each L/C Issuer the existing Term Loan Facility and (y) written confirmation from each any existing Lender, if any, participating in such Incremental Facility of existing at the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by time such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the subsequent Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Dateis incurred).
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Commitment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Revolving Credit Facility and Term Loan Facility;
(iii) in the conditions of the Lenders providing event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Term Loan Facility Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans, unless accompanied by at least a ratable payment of the Term Loans;
(iv) in the event such Incremental Facility is an Incremental Revolving Facility, such Incremental Facility shall have a final maturity no earlier than the Revolving Credit Facility Maturity Date and shall require no amortization or mandatory commitment reduction prior to the Revolving Credit Facility Maturity Date; and
(v) to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (xA) are more favorable to the Borrower, taken as a New Lender Joinder Agreement duly executed by whole, than the Borrower and each Eligible Assignee, if any, that is becoming a Lender Loan Documents in connection with such Incremental respect of the Revolving Credit Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving IncreaseFacility, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of or the amount by which its Commitment will be increasedTerm Loan Facility, in the case of an the Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, Term Facility (or the amount of Lenders under the term loan to be made by such Lender, in the case of an Incremental Revolving Credit Facility or Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning applicable, receive the Incremental Facility as benefit of the Administrative Agent more restrictive terms, which, for avoidance of doubt, may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have be provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, them without limitation, the PATRIOT Act, and the Beneficial Ownership Regulationtheir consent), in each case at least five case, as certified by a Responsible Officer of the Borrower in good faith, (5B) days prior concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule and any prepayment premiums applicable to such Incremental Facility or (C) apply after the applicable Increase Effective Maturity Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
: (i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
: (A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount$1,000,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
; (B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and 6.01, (2) no Default exists;
, and (3) Availability equals or exceeds zero ($0) (in the case of an Incremental Term Loan Facility, on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility); (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
; (iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.69
Appears in 1 contract
Samples: Credit Agreement (Safehold Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions and/or the Amendment Effective Date include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to $1,750,000,000, and (y) in the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modifiedcase of the Borrower, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facilityincrease, (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) on and as of the thesuch Increase Effective Date, except to the extent that (1)where such representations and warranties specifically refer referexpressly relate to an earlier date, in which case they are aresuch representations and warranties shall have been true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, (2) any representation or warranty that is already by its terms(or, if qualified as to “by materiality”, “Material Adverse Effect” or similar language shall be true and correct, in all respects) as of such earlier date after giving effect to such qualification and (3)and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and for each Eligible AssigneeAssignee (other than a Lender), if any, that is becoming a Lender participating in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be duly executed by the Borrower and each such Eligible Assignee and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving IncreaseFacility, each the Swing Line Lenders and the L/C Issuer Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loans and/or term loan commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
and (v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viiii) the Borrower shall provide a Note have paid to any new Lender joining on the Increase Effective DateArrangers the fees, if requested; and
any, required to be paid pursuant to the Fee Letters in connection therewith and (viiiv) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Act, Act and the Beneficial Ownership RegulationRegulation (including a Beneficial Ownership Certification), in each case at least five (5) days Business Days prior to the applicable such Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall (A) have a final maturity no earlier than the Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Facilities), unless accompanied by at least a ratable payment of the Term Loans;
(iv) [reserved]; and
(v) to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (xA) are more favorable to the Borrower, taken as a New Lender Joinder Agreement duly executed whole, than the Loan Documents in respect of the Term Loan Facility (or the Lenders under the Term Loan Facility receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and each Eligible Assignee, if any, any prepayment premiums applicable to such Incremental Facility or (C) apply after the applicable Maturity Date (it being understood to the extent that any financial maintenance covenant is becoming a Lender in connection with added for the benefit of any such Incremental Facility, which New Lender Joinder Agreement no consent shall be acknowledged and consented to in writing by required from the Administrative Agent and, in to the case extent that such financial maintenance covenant is also added for the benefit of an the existing Term Loan facility and any existing Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each facility existing Lender, if any, participating in at the time such subsequent Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agentis incurred), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to $225,000,000, and (y) in the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modifiedcase of the Borrower, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facilityincrease, (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) on and as of the such Increase Effective Date, except to the extent that where such representations and warranties specifically refer expressly relate to an earlier date, in which case they are such representations and warranties shall have been true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, date and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and for each Eligible AssigneeAssignee (other than a Lender), if any, that is becoming a Lender participating in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be duly executed by the Borrower and each such Eligible Assignee and acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loans and/or term loan commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viiii) the Borrower shall provide a Note to any new Lender joining on have paid the Increase Effective Datefees, if requested; and
any, required to be paid pursuant to the Fee Letters in connection therewith and (viiiv) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Act, Act and the Beneficial Ownership RegulationRegulation (including a Beneficial Ownership Certification), in each case at least five (5) days Business Days prior to the applicable such Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall have the same guarantees as, and be satisfied or waived;
(iv) secured on a pari passu basis with, the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed Secured Obligations; provided that, if agreed by the Borrower and each Eligible Assigneethe relevant Incremental Lenders, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will may be increased, in the case of an Incremental Revolving Increase, which confirmation shall subject to lesser guarantees or be acknowledged and consented to in writing by each L/C Issuerunsecured or less secured, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning Liens securing the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior rank junior to the applicable Increase Effective Date, Liens securing the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, Term Loan Facility and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.2017 Incremental Revolving Facility;
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which if such resolutions include included approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount$1,000,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;; and
(B) certifying that, before and after giving pro forma effect to such Incremental FacilityFacility (including, all Credit Extensions to occur on such Increase Effective Date and the use of proceeds thereof), (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or, (A) with respect to representations and warranties set forth in Sections 5.15(b) and 5.19 and (B) representations and warranties qualified as to materiality or if qualified by “materiality,” “material adverse effect” or similar languageMaterial Adverse Effect, true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are shall be true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.15, the representations and warranties contained in subsections clauses (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections clauses (a) and (b), respectively, of Section 6.01 6.01, and (2) no Default exists;
exists or would result therefrom and (ii3) Availability equals or exceeds zero ($0) (in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility);
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(ivii) the Administrative Agent shall have received received, in each case, in form and substance reasonably satisfactory to the Administrative Agent:
(xA) if requested by a New new Lender Joinder Agreement duly participating in such Incremental Facility, notes executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as payable to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably requestnew Lender;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to In each case, the effectiveness Incremental Facility shall become effective as of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
; provided that (i) no Default or Event of Default shall exist on such Increase Effective Date both before and after giving effect to such increase, (ii) before and after giving effect to such increase, each of the representations and warranties made by or on behalf of any Group Member in or pursuant to the Loan Documents shall be true and correct in all material respects (or, if qualified by materiality or Material Adverse Effect, in all respects) on such Increase Effective 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 (or, if qualified by materiality or Material Adverse Effect, in all respects) as of such earlier date and except that for purposes of this Section 2.14, the representations and warranties contained in Section 6.1(a) and (b) shall be deemed to refer to the most recent statements furnished pursuant to Sections 8.1(a) and (b), respectively), (iii) [reserved], (iv) the Parent Borrower shall deliver have delivered to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) Date, signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are Dollar Equivalent of $2,000,000,000 (in each case except in the case of an NZ Loan Party where such certificate shall be given by a director thereof and shall confirm that the necessary resolutions have been passed and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2) no Default exists;
(iiy) in the case of an Incremental Term Loan Facilitythe Parent Borrower, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect certifying to the closing of such Incremental Term Loan Facility;
Administrative Agent that the conditions in clauses (i) through (iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
above have been satisfied, (ivv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement for each Person (other than a Lender), if any, participating in such increase, which Joinder Agreement shall be duly executed by the Parent Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be Person and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving Increase, each L/C Issuer the Letter of Credit Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loan Term Loans and/or Term Loan Commitments and/or loans or commitments with respect to an Additional TL Tranche to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(vvi) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
, (vivii) the Borrower shall provide a Note to if requested by any new Lender joining on the applicable Increase Effective Date, if requested; and
the Administrative Agent shall have received a Note executed by the Borrowers in favor of such new Lender, (viiviii) the Borrowers shall have paid such fees to the Administrative Agent, for its own account and for the benefit of the Lenders participating in the increase, as are agreed mutually at the time and invoiced at least two (2) Business Days prior to the applicable Increase Effective Date and shall have paid any fees required to be paid pursuant to the Fee Letter in connection therewith, (ix) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower Borrowers shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the USA PATRIOT Act, Act and the Beneficial Ownership Regulation, in each case at least five (5) days Business Days prior to the applicable such Increase Effective DateDate and (x) the conditions to the making of an extension of credit set forth in Section 7.2 (other than the delivery of a Committed Loan Notice in the case of an Incremental Revolving Increase) shall be satisfied or waived.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement Aggregate Commitments to an amount at least equal to the Incremental Revolving Increase amount$500,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;,
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and 6.01, (2) no Default exists, (3) Availability;
(iiC) in the case of an Incremental Term Loan Facility, Availability shall equal or exceed zero ($0) on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility; and
(D) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iiiii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iviii) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(viv) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viv) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested;
(vi) if a Mortgage in favor of the Administrative Agent exists at such time on a Borrowing Base Asset, then the Administrative Agent shall have received evidence, in form and substance satisfactory to the Administrative Agent, that no Improvements located on such mortgaged Real Property Asset are located within a Special Flood Hazard Area or, if any are, evidence that the flood insurance prescribed herein has been obtained; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior Borrowers shall have paid to the applicable Increase Effective DateBookrunner, for its own account, the Borrower shall have provided fee required to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior paid pursuant to the applicable Increase Effective DateFee Letter.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Parent Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1i) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2ii) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date that (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (or if except to the extent that any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, materiality shall be true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date (other than the representation in Section 5.18, which shall be made only as of the Closing Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
(ii) in as of the case of an Incremental Term Loan FacilityIncrease Effective Date, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis and immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an no Default exists. In connection with any Incremental Revolving Increase, each L/C Issuer the Borrowers shall prepay any Committed Revolving Loans outstanding on the Increase Effective Date (and (ypay any additional amounts required pursuant to Section 3.05) written confirmation to the extent necessary to keep the outstanding Committed Revolving Loans ratable with any revised Applicable Percentages arising from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, any non-ratable increase in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower Commitments under this Section 2.16. The Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to $1,750,000,000, and (y) in the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modifiedcase of the Borrower, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facilityincrease, (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that (1) such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, (2) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and except correct in all respects as of such date after giving effect to such qualification and (3) that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and for each Eligible AssigneeAssignee (other than a Lender), if any, that is becoming a Lender participating in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be duly executed by the Borrower and each such Eligible Assignee and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving IncreaseFacility, each the Swing Line Lenders and the L/C Issuer Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loans and/or term loan commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
and (v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viiii) the Borrower shall provide a Note have paid to any new Lender joining on the Increase Effective DateArrangers the fees, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior any, required to be paid pursuant to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested Fee Letters in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Datetherewith.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date and/or theSecond Amendment Effective Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount$1,750,000,0001,500,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
, and (By) in the case of the Borrower, certifying that, before and after giving pro forma effect to such Incremental Facilityincrease (including, all Credit Extensions to occur on such Increase Effective Date and the use of proceeds thereof), (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) on and as of the such Increase Effective Date, except to the extent that where such representations and warranties specifically refer expressly relate to an earlier date, in which case they are such representations and warranties shall have been true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, date and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and for each Eligible AssigneeAssignee (other than a Lender), if any, that is becoming a Lender participating in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be duly executed by the Borrower and each such Eligible Assignee and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving IncreaseFacility, each the L/C Issuer Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loans and/or term loan commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viiii) the Borrower shall provide a Note have paid to any new Lender joining on the Increase Effective DateArrangers the fees, if requestedany, required to be paid pursuant to the Fee Letters in connection therewith and any other applicable fees and expenses; and
(viiiv) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Act, Act and the Beneficial Ownership RegulationRegulation (including a Beneficial Ownership Certification), in each case at least five (5) days Business Days prior to the applicable such Increase Effective Date; (v) if requested by a Lender participating in such Incremental Facility, the Borrower shall provide such Lender with a Note; and (vi) if requested by the Administrative Agent, the Administrative Agent shall have received a customary opinion of counsel to the Borrower and the Guarantors (which counsel shall be reasonably acceptable to Administrative Agent), addressed to the Administrative Agent, the L/C Issuers and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Borrower both Borrowers dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
each Borrower (A) either (1i) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2ii) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date that (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except to the extent that any representation or if warranty that is qualified by “materiality,” “material adverse effect” or similar language, materiality shall be true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2B) no Default exists;
(ii) in as of the case of an Incremental Term Loan FacilityIncrease Effective Date, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis and immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the no Default exists. The Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon . In addition to the reasonable request conditions precedent set forth above, it shall be a condition precedent to the effectiveness of any Incremental Facility that, if reasonably requested by any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Parent Borrower shall have provided (or cause to have been provided) to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Patriot Act, the Canadian AML Acts and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Datesuch effectiveness date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Parent Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1x) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2y) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, that (1) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (or, in the case of Section 5.22 or if any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date (other than the representations in Section 5.05(c) and Section 5.18, which shall be made only as of the Closing Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or, in the case of Section 5.22 or if any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2) as of the Increase Effective Date, and immediately after giving effect to such Incremental Facility, no Default exists;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower Borrowers and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment Commitments and/or Loans will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(viiiii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, antiAnti-money-laundering lawsMoney Laundering Law, including, without limitation, including the PATRIOT Act, Patriot Act and the Beneficial Ownership Regulation, and the Canadian AML Acts, in each case at least five (5) days prior to the applicable Increase Effective Date;
(iv) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall deliver to each Lender that is proposing to participate in such Incremental Facility and so requests, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to such Borrower at least five days prior to the applicable Increase Effective Date;
(v) the Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested;
(vi) if requested by the Administrative Agent or any Lender participating in such Incremental Facility, the Administrative Agent shall have received a favorable opinion of counsel (which counsel shall be reasonably acceptable to Administrative Agent), addressed to Administrative Agent and each Lender, as to such customary matters concerning the increase in the aggregate amount of the Facilities as Administrative Agent may reasonably request;
(vii) the Borrowers shall pay such fees to the Administrative Agent, for the benefit of the Lenders providing such Incremental Facility, as determined by the Borrowers and the Lenders providing such Incremental Facility at the time of such Incremental Facility;
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Lenders providing such Incremental Facility reasonably may require; and
(ix) such other conditions of the Lenders providing such Incremental Facility shall be satisfied or waived.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Commitment Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Revolving Credit Facility and Term Loan Facility;
(iii) in the conditions of the Lenders providing event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Term Loan Facility Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans, unless accompanied by at least a ratable payment of the Term Loans;
(iv) in the event such Incremental Facility is an Incremental Revolving Facility, such Incremental Facility shall have a final maturity no earlier than the Revolving Credit Facility Maturity Date and shall require no amortization or mandatory commitment reduction prior to the Revolving Credit Facility Maturity Date, unless accompanied by at least ratable amortization or mandatory commitment reduction, as applicable, of the Revolving Loans; and
(v) to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (xA) are more favorable to the Borrower, taken as a New Lender Joinder Agreement duly executed by whole, than the Borrower and each Eligible Assignee, if any, that is becoming a Lender Loan Documents in connection with such Incremental respect of the Revolving Credit Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving IncreaseFacility, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of or the amount by which its Commitment will be increasedTerm Loan Facility, in the case of an the Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, Term Facility (or the amount of Lenders under the term loan to be made by such Lender, in the case of an Incremental Revolving Credit Facility or Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning applicable, receive the Incremental Facility as benefit of the Administrative Agent more restrictive terms, which, for avoidance of doubt, may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have be provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, them without limitation, the PATRIOT Act, and the Beneficial Ownership Regulationtheir consent), in each case at least five case, as certified by a Responsible Officer of the Borrower in good faith, (5B) days prior concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the applicable Increase Effective Maturity Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law, in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) such Incremental Facility shall have the same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, in the case of an any Incremental Term Loan Facility, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Term Loan Parties will Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Term Loan Facility may rank junior to the closing of such Incremental Liens securing the Revolving Facility and Term Loan Facility;
(iii) in the conditions of the Lenders providing event such Incremental Facility is an Incremental Term Loan Facility, such Incremental Term Loan Facility shall (A) have a final maturity no earlier than the Term Loan Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Term Loan Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Term Loan Facilities), unless accompanied by at least a ratable payment of the Term Loans;
(iv) to the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if extent requested by the Appropriate Administrative Agent or any new Lender or Lender participating Agent, within 90 days (as such period may be extended in the Incremental Facility, reasonable discretion of the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Appropriate Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning ) after the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided deliver to the Appropriate Administrative Agent and the Collateral Trustee amendments to each of the Mortgages in effect prior to the Incremental Facility Effective Date, in form and substance reasonably acceptable to Appropriate Administrative Agent; and
(v) in the event such LenderIncremental Facility is an Incremental Term Loan Facility, to the extent such terms and such Lender documentation for the Incremental Term Loan Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfied withsatisfactory to the Term Administrative Agent, unless such terms (A) are more favorable to the documentation and other information so requested Borrower, taken as a whole, than the Loan Documents in connection with applicable “know your customer” rules and regulationsrespect of the Term Loan Facility (or the Lenders under the Term Loan Facility receive the benefit of the more restrictive terms, anti-money-laundering lawswhich, includingfor avoidance of doubt, may be provided to them without limitation, the PATRIOT Act, and the Beneficial Ownership Regulationtheir consent), in each case at least five case, as certified by a Responsible Officer of the Borrower in good faith, (5B) days prior concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the applicable Term Loan Maturity Date (it being understood to the applicable Increase Effective Dateextent that any financial maintenance covenant is added for the benefit of any such Incremental Term Loan Facility, no consent shall be required from the Term Administrative Agent to the extent that such financial maintenance covenant is also added for the benefit of the existing Term Loan Facility and any existing Incremental Facility existing at the time such subsequent Incremental Term Loan Facility is incurred).
Appears in 1 contract
Samples: Credit and Guaranty Agreement (Foresight Energy LP)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;Facility,
(B) certifying that, before and after giving effect to such Incremental Facility, (1) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.15, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and 6.01, (2) no Default exists, (3) Availability;
(iiC) in the case of an Incremental Term Loan Facility, Availability shall equal or exceed zero ($0) on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility; and
(D) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iiiii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iviii) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(viv) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary favorable opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viv) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested;
(vi) if a Mortgage in favor of the Administrative Agent exists at such time on a Borrowing Base Asset, then the Administrative Agent shall have received evidence, in form and substance satisfactory to the Administrative Agent, that no Improvements located on such mortgaged Real Property Asset are located within a Special Flood Hazard Area or, if any are, evidence that the flood insurance prescribed herein has been obtained; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior Borrowers shall have paid to the applicable Increase Effective DateBookrunner, for its own account, the Borrower shall have provided fee required to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior paid pursuant to the applicable Increase Effective DateFee Letter.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing First Amendment Effective Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount$225,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
, and (By) in the case of the Borrower, certifying that, before and after giving pro forma effect to such Incremental Facilityincrease (including, all Credit Extensions to occur on such Increase Effective Date and the use of proceeds thereof), (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) on and as of the such Increase Effective Date, except to the extent that where such representations and warranties specifically refer expressly relate to an earlier date, in which case they are such representations and warranties shall have been true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, date and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and for each Eligible AssigneeAssignee (other than a Lender), if any, that is becoming a Lender participating in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be duly executed by the Borrower and each such Eligible Assignee and acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loans and/or term loan commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viiii) the Borrower shall provide a Note to any new Lender joining on have paid the Increase Effective Datefees, if requestedany, required to be paid pursuant to the Fee Letters in connection therewith and any other applicable fees and expenses; and
(viiiv) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Act, Act and the Beneficial Ownership RegulationRegulation (including a Beneficial Ownership Certification), in each case at least five (5) days Business Days prior to the applicable such Increase Effective Date; (v) if requested by a Lender participating in such Incremental Facility, the Borrower shall provide such Lender with a Note; and (vi) if requested by the Administrative Agent, the Administrative Agent shall have received a customary opinion of counsel to the Borrower and the Guarantors (which counsel shall be reasonably acceptable to Administrative Agent), addressed to the Administrative Agent and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law, in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall be secured on a senior, pari passu or junior basis with the case of Liens securing the Secured Obligations pursuant to an intercreditor agreement reasonably satisfactory to the Required Lenders; provided that, if agreed by the Borrower and the relevant Incremental Term Loan FacilityLenders, the Loan Parties will Incremental Facility may be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect subject to the closing of such Incremental Term Loan Facilitygreater or lesser guarantees, or be unsecured or more or less secured;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;[reserved]; and
(iv) to the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if extent requested by the Administrative Agent or any new Lender or Lender participating Agent, within 90 days (as such period may be extended in the Incremental Facility, the Administrative Agent shall have received a customary opinion reasonable discretion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning ) after the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided deliver to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested Collateral Agent the amendments to each of the Mortgages in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days effect prior to the applicable Increase Incremental Facility Effective Date, in form and substance reasonably acceptable to the Collateral Agent.
Appears in 1 contract
Samples: Credit and Guaranty Agreement
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Parent Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1x) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2y) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, that (1) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (or, in the case of the representations and warranties in Sections 5.16 and 5.22 or if any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date (other than the representations in Section 5.05(c) and Section 5.18, which shall be made only as of the Closing Date), except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or, in the case of the representations and warranties in Sections 5.16 and 5.22 or if any representation and warranty that is qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2) as of the Increase Effective Date, and immediately after giving effect to such Incremental Facility, no Default exists;
(ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower Borrowers and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment Commitments and/or Loans will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(viiiii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower Borrowers shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, antiAnti-money-laundering lawsMoney Laundering Law, including, without limitation, including the PATRIOT Act, Patriot Act and the Beneficial Ownership Regulation, and the Canadian AML Acts, in each case at least five (5) days prior to the applicable Increase Effective Date;
(iv) if any Borrower qualifies as a “legal entity customer” under the Beneficial Ownership Regulation, such Borrower shall deliver to each Lender that is proposing to participate in such Incremental Facility and so requests, in a form acceptable to such Lender, a Beneficial Ownership Certification in relation to such Borrower at least five days prior to the applicable Increase Effective Date;
(v) the Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested;
(vi) if requested by the Administrative Agent or any Lender participating in such Incremental Facility, the Administrative Agent shall have received a favorable opinion of counsel (which counsel shall be reasonably acceptable to Administrative Agent), addressed to Administrative Agent and each Lender, as to such customary matters concerning the increase in the aggregate amount of the Facilities as Administrative Agent may reasonably request;
(vii) the Borrowers shall pay such fees to the Administrative Agent, for the benefit of the Lenders providing such Incremental Facility, as determined by the Borrowers and the Lenders providing such Incremental Facility at the time of such Incremental Facility;
(viii) such other assurances, certificates, documents, consents or opinions as the Administrative Agent or the Lenders providing such Incremental Facility reasonably may require; and
(ix) such other conditions of the Lenders providing such Incremental Facility shall be satisfied or waived.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an Incremental Term Loan Facilitysame guarantees as, and be secured on a pari passu basis with, the Loan Parties will Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be in compliance with subject to lesser guarantees or be unsecured or less secured, or the provisions of Section 7.11 on a pro forma basis immediately after giving effect Liens securing the Incremental Facility may rank junior to the closing of such Incremental Liens securing the Term Loan Facility;
(iii) in the conditions of the Lenders providing event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Term Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental FacilitiesTerm Loans), unless accompanied by at least a ratable payment of the Term Loans;
(iv) [reserved]; andin the event such Incremental Facility is an Incremental Revolving Facility, (A) the terms and provisions of all Incremental Revolving Facilities shall be identical; and (B) the Borrower shall use the proceeds (including any Letters of Credit issued thereunder) of such Incremental Revolving Facilities for working capital and general corporate purposes; and
(v) The terms, provisions and documentation of an Incremental Facility shall be as agreed between the Borrower and the Incremental Lenders providing such Incremental Facility, and to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (A) are more favorable to the Borrower, taken as a whole, than the Loan Documents in respect of the Term Loan Facility (or the Lenders under the Term Loan Facility receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the applicable Maturity Date (it being understood; provided that, (x) a New Lender Joinder Agreement duly executed by financial maintenance covenant may be added for the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by benefit of the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and Facilities (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility but not for the benefit of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, Term Loan Facility or the amount of the term loan to be made by such Lender, in the case of an any Incremental Term Loan Facility;
(v) if requested by without the consent of the Administrative Agent or any new Lender or Lender participating in of the Lenders other than the Incremental Revolving Lenders and (y) to the extent that any financial maintenance covenant is added for the benefit of any such Incremental Term Facility, no consent shall be required from the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agentextent that such financial maintenance covenant is also added for the benefit of the existing Term Loan facilityFacility and any existing Incremental facilityFacility existing at the time such subsequent Incremental Term Facility is incurred), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
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Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1i) certifying and attaching the resolutions adopted by each Loan Party of the Credit Parties approving or consenting to such Incremental Facility or Facility, and (2ii) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date that (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V and in the other Loan Documents are true and correct in all material respects (except to the extent that any representation or if warranty that is qualified by “materiality,” “material adverse effect” or similar language, materiality shall be true and correct in all respects (after giving effect to such qualification)respects) on and as of the Increase Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are were true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 and (2B) no Default exists;
(ii) in as of the case of an Incremental Term Loan FacilityIncrease Effective Date, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis and immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an no Default exists. In connection with any Incremental Revolving Increase, each L/C Issuer the Borrower shall prepay any Committed Revolving Loans outstanding on the Increase Effective Date (and (ypay any additional amounts required pursuant to Section 3.05) written confirmation to the extent necessary to keep the outstanding Committed Revolving Loans ratable with any revised Applicable Percentages arising from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Commitment will be increased, any non-ratable increase in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(vi) the Commitments under this Section 2.16. The Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
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Samples: Credit and Guaranty Agreement (Care Capital Properties, Inc.)
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the applicable Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Second Amendment Effective Date (which resolutions include approval to increase the maximum aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount$1,500,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
, and (By) in the case of the Borrower, certifying that, before and after giving pro forma effect to such Incremental Facilityincrease (including, all Credit Extensions to occur on such Increase Effective Date and the use of proceeds thereof), (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) on and as of the such Increase Effective Date, except to the extent that where such representations and warranties specifically refer expressly relate to an earlier date, in which case they are such representations and warranties shall have been true and correct in all material respects (or or, if qualified by “materiality,” “material adverse effect” , Material Adverse Effect or similar language, in all respects (after giving effect to such qualification)respects) as of such earlier date, date and except that for purposes of this Section 2.142.16, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Borrower and for each Eligible AssigneeAssignee (other than a Lender), if any, that is becoming a Lender participating in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be duly executed by the Borrower and each such Eligible Assignee and acknowledged and consented to in writing by the Administrative Agent andAgent, and in the case of an Incremental Revolving IncreaseFacility, each the L/C Issuer Issuers and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility increase of the amount by which its Revolving Credit Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or and/or the amount of the term loans and/or term loan commitments to be made provided by such Lenderit, in the case of an Incremental Term Loan Facility;
(v) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to the Administrative Agent and each Lender, as to such customary matters concerning the Incremental Facility as the Administrative Agent may reasonably request;
(viiii) the Borrower shall provide a Note have paid to any new Lender joining on the Increase Effective DateArrangers the fees, if requestedany, required to be paid pursuant to the Fee Letters in connection therewith and any other applicable fees and expenses; and
(viiiv) upon the reasonable request of any Lender or potential Lender made at least ten (10) days Business Days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender or potential Lender, and such Lender or potential Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering lawsrules and regulations, including, without limitation, the PATRIOT Act, Act and the Beneficial Ownership RegulationRegulation (including a Beneficial Ownership Certification), in each case at least five (5) days Business Days prior to the applicable such Increase Effective Date; (v) if requested by a Lender participating in such Incremental Facility, the Borrower shall provide such Lender with a Note; and (vi) if requested by the Administrative Agent, the Administrative Agent shall have received a customary opinion of counsel to the Borrower and the Guarantors (which counsel shall be reasonably acceptable to Administrative Agent), addressed to the Administrative Agent, the L/C Issuers and the Lenders, in form and substance reasonably satisfactory to the Administrative Agent.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions a condition precedent to the effectiveness of each such Incremental Facility, each of the following requirements shall be satisfied on or prior to the applicable Increase Effective Date:
(i) the Parent Borrower shall deliver to the Administrative Agent a certificate of the Borrower each Loan Party dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
such Loan Party (Ax) either (1) certifying and attaching the resolutions adopted by each such Loan Party approving or consenting to such Incremental Facility increase or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement the Facilities to an amount at least equal to the Incremental Revolving Increase amount$1,000,000,000) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
, and (By) in the case of the Parent Borrower, certifying thatthat on the Increase Effective Date, immediately before and after giving effect to such Incremental Facilityincrease, (1A) the representations and warranties contained in Article V and the other Loan Documents are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Effective Date, except (i) 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 as of such earlier date, (ii) any representation or warranty that is already by its terms qualified as to “materiality”, “Material Adverse Effect” or similar language shall be true and correct in all respects as of such applicable date (including such earlier date set forth in the foregoing clause (i)) after giving effect to such qualification except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that (iii) for purposes of this Section 2.14, the representations and warranties contained in subsections (a) and (b) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b), respectively, of Section 6.01 6.01, and (2B) no Default exists;
, (ii) in the case of an Incremental Term Loan Facility, the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such Incremental Term Loan Facility;
(iii) the conditions of the Lenders providing such Incremental Facility shall be satisfied or waived;
(iv) the Administrative Agent shall have received (x) a New Lender Joinder Agreement duly executed by the Parent Borrower and each Eligible Assignee, if any, Assignee that is becoming a Lender in connection with such Incremental Facilityincrease, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer Issuer, and (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility of the amount by which its Revolving Credit Commitment will be increasedincreased or the amount of term loans to be made by such Lender, in as the case of an Incremental Revolving Increasemay be, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, or the amount of the term loan to be made by such Lender, Issuer in the case of an Incremental Term Loan Facility;
Revolving Increase, and (viii) if requested by the Administrative Agent or any new Lender or Lender participating in the Incremental Facility, the Administrative Agent Parent Borrower shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable pay such fees to the Administrative Agent), addressed for its own account and for the benefit of the Lenders participating in the increase, as are agreed mutually at the time and shall have paid the fee required to be paid pursuant to the Administrative Agent Fee Letter in connection therewith. The Parent Borrower shall prepay any Loans outstanding on the Increase Effective Date (and each Lender, as pay any additional amounts required pursuant to such customary matters concerning Section 3.05) to the Incremental Facility as extent necessary to keep the Administrative Agent may reasonably request;
(vi) outstanding Loans ratable with any revised Applicable Percentages arising from any nonratable increase in the Borrower Commitments under this Section. The Borrowers shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Date.
Appears in 1 contract
Conditions to Effectiveness of Incremental Facility. As conditions precedent to the The effectiveness of each such Incremental Facility, each of Facility shall be subject to the following requirements shall be satisfied on or prior to the applicable Increase Effective Dateconditions:
(i) the Borrower shall deliver to the Administrative Agent a certificate of the Borrower dated as of the Increase Effective Date (in sufficient copies for each Lender) signed by a Responsible Officer of the Borrower:
(A) either (1) certifying and attaching the resolutions adopted by each Loan Party approving or consenting to such Incremental Facility or (2) certifying that, as of such Increase Effective Date, the resolutions delivered to the Administrative Agent and the Lenders on the Closing Date (which resolutions include approval to increase the aggregate principal amount of all commitments and outstanding loans under this Agreement to an amount at least equal to the Incremental Revolving Increase amount) are and remain in full force and effect and have not been modified, rescinded or superseded since the date of adoption;
(B) certifying that, before and after giving effect to such Incremental Facility, (1A) the representations and warranties contained in Article V (or, in the case of any Incremental Facility being requested in connection with a Permitted Acquisition, the Specified Representations and Acquisition Agreement Representations in the other Loan Documents Acquisition Agreement for such Permitted Acquisition) are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) on and as of the Increase Incremental Facility Effective Date, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects (or if qualified by “materiality,” “material adverse effect” or similar language, in all respects (after giving effect to such qualification)) as of such earlier date, and except that for purposes (ii) (A) if such Incremental Facility is being requested in connection with a Permitted Acquisition, no Event of this Section 2.14Default under Sections 8.01(a), (f), or (g) has occurred or is continuing or would immediately result therefrom, unless such conditions would not be permitted by applicable Law (e.g., in an Australian acquisition context), in which case the representations and warranties contained in subsections (a) satisfaction of such conditions shall not be required, and (bB) of Section 5.05 shall be deemed to refer to the most recent statements furnished pursuant to subsections (a) and (b)otherwise, respectively, of Section 6.01 and (2) no Default existsor Event of Default has occurred or is continuing or would immediately result therefrom;
(ii) in such Incremental Facility shall have the case of an same guarantees as, and be secured on a pari passu basis with, the Secured Obligations; provided that, if agreed by the Borrower and the relevant Incremental Lenders, the Incremental Facility may be subject to lesser guarantees or be unsecured or less secured, or the Liens securing the Incremental Facility may rank junior to the Liens securing the Term Loan Facility, Facility and the Loan Parties will be in compliance with the provisions of Section 7.11 on a pro forma basis immediately after giving effect to the closing of such 2017 Incremental Term Loan Revolving Facility;
(iii) in the conditions of the Lenders providing event such Incremental Facility is an Incremental Term Facility, such Incremental Facility shall (A) have a final maturity no earlier than the Maturity Date, (B) have a weighted average life no shorter than that of the Term Loan Facility and any other Incremental Term Facilities outstanding and (C) not have any terms which require it to be satisfied voluntarily or waivedmandatorily prepaid prior to the repayment in full of the Term Loans (including any other Incremental Term Loans), unless accompanied by at least a ratable payment of the Term Loans;
(iv) in the event such Incremental Facility is an Incrementala Revolving Facility, (A) the terms and provisions of all Incremental Revolving Facilities shall be identical to the Revolving Facility terms and provisions (other than the provisions solely applicable to the 2017 Incremental Revolving Facility); and (B) the Borrower shall use the proceeds (including any Letters of Credit issued thereunder) of such Incremental Revolving Facilities for working capital and general corporate purposes; and
(v) The terms, provisions and documentation of an Incremental Facility shall be as agreed between the Borrower and the Incremental Lenders providing such Incremental Facility, and to the extent such terms and documentation for the Incremental Facility are not substantially consistent with the applicable Loan Documents, they shall be reasonably satisfactory to the Administrative Agent shall have received Agent, unless such terms (A) are more favorable to the Borrower, taken as a whole, than the Loan Documents in respect of the Facilities (or the Lenders under the Facilities receive the benefit of the more restrictive terms, which, for avoidance of doubt, may be provided to them without their consent), in each case, as certified by a Responsible Officer of the Borrower in good faith, (B) concern pricing (including interest rates, rate floors, fees, OID or other fees), the amortization schedule, commitment reductions, prepayments and any prepayment premiums applicable to such Incremental Facility or (C) apply after the latest then applicable Maturity Date; provided that, (x) a New Lender Joinder Agreement duly executed by financial maintenance covenant may be added for the Borrower and each Eligible Assignee, if any, that is becoming a Lender in connection with such Incremental Facility, which New Lender Joinder Agreement shall be acknowledged and consented to in writing by benefit of the Administrative Agent and, in the case of an Incremental Revolving Increase, each L/C Issuer and Facilities (y) written confirmation from each existing Lender, if any, participating in such Incremental Facility but not for the benefit of the amount by which its Commitment will be increased, in the case of an Incremental Revolving Increase, which confirmation shall be acknowledged and consented to in writing by each L/C Issuer, Term Loan Facility or the amount of the term loan to be made by such Lender, in the case of an any Incremental Term Loan Facility;
(v) if requested by without the consent of the Administrative Agent or any new Lender or Lender participating in of the Lenders other than the Incremental Revolving Lenders and (y) to the extent that any financial maintenance covenant is added for the benefit of any Incremental Term Facility, no consent shall be required from the Administrative Agent shall have received a customary opinion of counsel (which counsel shall be reasonably acceptable to the Administrative Agent), addressed to extent that such financial maintenance covenant is also added for the Administrative Agent benefit of the existing Term Loan Facility and each Lender, as to such customary matters concerning the any existing Incremental Facility as existing at the Administrative Agent may reasonably request;
(vi) the Borrower shall provide a Note to any new Lender joining on the Increase Effective Date, if requested; and
(vii) upon the reasonable request of any Lender made at least ten (10) days prior to the applicable Increase Effective Date, the Borrower shall have provided to time such Lender, and such Lender shall be reasonably satisfied with, the documentation and other information so requested in connection with applicable “know your customer” rules and regulations, anti-money-laundering laws, including, without limitation, the PATRIOT Act, and the Beneficial Ownership Regulation, in each case at least five (5) days prior to the applicable Increase Effective Datesubsequent Incremental Term Facility is incurred.
Appears in 1 contract
