Conditions to Increase. Unless otherwise terminated in accordance with Section 7 below prior to such time, the Increase shall become effective on the first date (the “First Increase Effective Date”) following the Agreement Effective Date on which each of the following conditions have been satisfied (or waived in accordance with Section 11.2 of the Credit Agreement), and the making of the First Increase Initial Term Loans on the First Increase Effective Date shall be subject solely to the satisfaction (or waiver in accordance with Section 11.2 of the Credit Agreement) of the following conditions on such date (it being agreed that the making of any Revolving Loans on the First Increase Effective Date, under the Increase or otherwise, shall be subject to the conditions set forth in Section 3.2 of the Credit Agreement): (a) The Specified Representations shall be true and correct in all material respects (or in all respects if qualified by materiality) immediately prior to, and immediately after giving effect to, the initial borrowing of First Increase Initial Term Loans; (b) The Acquisition shall have been consummated substantially concurrently with the funding of the First Increase Initial Term Loans on the First Increase Effective Date in accordance with, in all material respects, the Acquisition Agreement and there shall not have been any amendment or waiver to the Acquisition Agreement by the Borrower or any of its Subsidiaries that is materially adverse to the Lenders unless consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that a reduction in the consideration payable under the Acquisition Agreement shall be deemed not to be materially adverse to the Lenders so long as any such reduction in cash consideration shall be applied to reduce the aggregate amount of the Increase on a dollar-for-dollar basis, with such aggregate reduction to be applied on a pro rata basis among the Additional Lenders based on the aggregate respective amounts of the Increase to be provided by each such Lender as set forth Schedule I and further applied as to any Additional Lender to reduce its Increased Initial Term Loan Commitment (if any) and Increased Revolving Commitment (if any) on a pro rata basis; (c) The Agent shall have received, from the Target and each of its subsidiaries, in each case that is a Material Subsidiary (other than any Excluded Subsidiary) (the “Target Entities”), the documentation required by Section 5.7 of the Credit Agreement; provided that, to the extent any security interest in any Collateral required to be provided by any Target Entity or in the equity interests of any Target Entity (other than any such Collateral (i) to the extent the security interest in which may be perfected by the filing of a UCC financing statement or intellectual property filings or (ii) if received from the Target at least two Business Days prior to Closing, consisting of certificated securities representing the equity interests in the Target and each of the Target’s Material Subsidiaries (other than any Excluded Assets (as defined in the Pledge and Security Agreement), in each case together with transfer powers executed in blank) is not or cannot be provided or perfected on the First Increase Effective Date after the Borrower’s use of commercially reasonable efforts to do so, the provision and/or perfection of such security interest(s) in such Collateral will not constitute a condition precedent to the effectiveness of the Increase but shall instead be required within the timeframe provided for in Section 5.7 of the Credit Agreement; (d) The Agent shall have received a certificate of a duly authorized officer of the Borrower dated as of the Increase Effective Date certifying as to the satisfaction of the condition set forth in clause (a) above; (e) The Agent shall have received the written opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as New York counsel to the Loan Parties and ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, as North Carolina counsel to Five Points Capital, Inc. (or in each case other counsel to the Loan Parties reasonably acceptable to the Agent) with respect to the Increase and this Agreement, in each case, in form and substance reasonably satisfactory to the Agent; (f) Each Lender shall have received, at least three (3) Business Days prior to the First Increase Effective Date, all documentation and other information requested by it in writing to the Borrower at least 10 Business Days prior to the First Increase Effective Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation; (g) The Agent shall be reasonably satisfied with the arrangements for the payment of all fees and (to the extent invoiced at least two (2) Business Days prior to the First Increase Effective Date) expenses required to be paid for the respective accounts of the Agent, the Additional Lenders and JPMorgan Chase Bank, N.A. on the First Increase Effective Date as separately agreed between the Borrower and JPMorgan Chase Bank, N.A. (it being understood that such fees and expenses may be netted out of the initial funding of the Loans under the Increase); and (h) The Agent shall have received a Request for Borrowing in accordance with Section 2.6 of the Credit Agreement.
Appears in 1 contract
Conditions to Increase. Unless otherwise terminated in accordance with Section 7 below prior to such time, the The effectiveness of each Incremental Term Loan Commitment and each U.S. Revolving Credit Commitment Increase shall become effective on the first date (the “First Increase Effective Date”) following the Agreement Effective Date on which each of the following conditions have been satisfied (or waived in accordance with Section 11.2 of the Credit Agreement), and the making of the First Increase Initial Term Loans on the First Increase Effective Date shall be subject solely to the satisfaction (or waiver in accordance with Section 11.2 of the Credit Agreement) of the following conditions on such date (it being agreed that the making of any Revolving Loans on the First Increase Effective Date, under the Increase or otherwise, shall be subject to the following conditions set forth in Section 3.2 that on and as of such Incremental Amount Date or U.S. Revolving Credit Commitment Date, as applicable:
(i) No Default would occur or be continuing before or after giving effect to such Incremental Term Loan Commitment or U.S. Revolving Credit Commitment Increase, as applicable.
(ii) Both before and after giving effect to the consummation of the Incremental Term Loans or the U.S. Revolving Credit Agreement):
(a) The Specified Representations Commitment Increase, as applicable, and the transactions related thereto, each of the representations and warranties contained in this Agreement and in the other U.S. Loan Documents shall be true and correct in all material respects (or to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in all respects if qualified by materiality) immediately prior to, which case such representations and immediately after giving effect to, the initial borrowing of First Increase Initial Term Loans;
(b) The Acquisition warranties shall have been consummated substantially concurrently with the funding of the First Increase Initial Term Loans on the First Increase Effective Date in accordance with, true and correct in all material respectsrespects on and as of such earlier date (provided that if a representation and warranty is qualified as to materiality, the Acquisition Agreement materiality qualifier set forth above shall be disregarded with respect to such representation and there shall not have been any amendment or waiver to the Acquisition Agreement by the warranty for purposes of this condition).
(iii) The Borrower or any of and its Subsidiaries shall be in compliance for the most recently completed Test Period with the lesser of (x) the ratio required pursuant to Section 5.1 for the applicable period except that is materially adverse to the Lenders unless consented to by “Maximum Consolidated Net Leverage Ratio” shall be 0.25 less than the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that a reduction relevant figure set forth in the consideration payable under the Acquisition Agreement shall be deemed not table in such Section and (y) 2.65 to be materially adverse to the Lenders so long as any such reduction in cash consideration shall be applied to reduce the aggregate amount of the Increase on a dollar-for-dollar basis, with such aggregate reduction to be applied on a pro rata basis among the Additional Lenders based on the aggregate respective amounts of the Increase to be provided by each such Lender as set forth Schedule I and further applied as to any Additional Lender to reduce its Increased Initial Term Loan Commitment (if any) and Increased Revolving Commitment (if any) on a pro rata basis;
(c) The Agent shall have received, from the Target and each of its subsidiaries1.00, in each case that is on a Material Subsidiary (other than any Excluded Subsidiary) (the “Target Entities”), the documentation required by Section 5.7 of the Credit Agreement; provided that, pro forma basis after giving effect to the extent Incremental Term Loan Commitments or the U.S. Revolving Credit Commitment Increase and deeming, for purposes of such calculation, that the Borrower shall have borrowed in full the Loans made available pursuant to the U.S. Revolving Credit Commitment Increase on such U.S. Revolving Credit Commitment Increase Date, as applicable (whether or not such loans have in fact been borrowed on such date).
(iv) The Borrower shall make any security interest payments required pursuant to Section 2.12 and Section 2.17(f) in any Collateral required connection with such Incremental Term Loan Commitment or U.S. Revolving Credit Commitment Increase, as applicable.
(v) The Borrower shall deliver or cause to be provided delivered any legal opinions or other documents reasonably requested by any Target Entity or Administrative Agent in the equity interests of any Target Entity (other than connection with any such Collateral (i) to the extent the security interest in which may be perfected by the filing of a UCC financing statement or intellectual property filings or (ii) if received from the Target at least two Business Days prior to Closing, consisting of certificated securities representing the equity interests in the Target and each of the Target’s Material Subsidiaries (other than any Excluded Assets (as defined in the Pledge and Security Agreement), in each case together with transfer powers executed in blank) is not or cannot be provided or perfected on the First Increase Effective Date after the Borrower’s use of commercially reasonable efforts to do so, the provision and/or perfection of such security interest(s) in such Collateral will not constitute a condition precedent to the effectiveness of the Increase but shall instead be required within the timeframe provided for in Section 5.7 of the Credit Agreement;transaction.
(dvi) The Agent shall have received a certificate of a duly authorized officer of the Borrower dated as of the Increase Effective Date certifying as to the satisfaction of the condition set forth in clause (a) above;
(e) The Agent shall have received the written opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as New York counsel to the Loan Parties and ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, as North Carolina counsel to Five Points Capital, Inc. (or in each case other counsel to the Loan Parties reasonably acceptable to the Agent) with respect to the Increase and this Agreement, in each caseAn agreement, in form and substance reasonably satisfactory to the Administrative Agent;
(f) Each Lender shall have received, at least three (3) Business Days prior pursuant to the First which, effective as of such Incremental Amount Date or U.S. Revolving Credit Commitment Increase Effective Date, all documentation and other information requested by it in writing to the Borrower at least 10 Business Days prior to the First Increase Effective Date that is required by regulatory authorities under as applicable, each Incremental Term Loan Lender, U.S. Revolving Increasing Lender or U.S. Revolving Assuming Lender, as applicable, shall provide its Incremental Term Loan Commitment, U.S. Revolving Credit Commitment, or an increase of its applicable “know your customer” and anti-money laundering rules and regulationsU.S. Revolving Credit Commitment, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation;
(g) The Agent as applicable, shall be reasonably satisfied with the arrangements for the payment of all fees and (to the extent invoiced at least two (2) Business Days prior to the First Increase Effective Date) expenses required to be paid for the respective accounts of the Agentduly executed by each such lender, the Additional Lenders and JPMorgan Chase Bank, N.A. on the First Increase Effective Date as separately agreed between the Borrower and JPMorgan Chase Bankthe other U.S. Loan Parties and delivered to the Administrative Agent (each, N.A. (it being understood that such fees and expenses may an “Increased Commitment Agreement”). Each Increased Commitment Agreement shall be netted out of subject to the initial funding of the Loans under the Increaserequirements set forth in Section 2.17(f); and.
(hvii) The A certificate of a Responsible Officer shall be delivered to the Administrative Agent shall stating that the conditions with respect to such Incremental Term Loan Commitment or U.S. Revolving Credit Commitment Increase, as applicable, under this Section 2.19 have received a Request for Borrowing in accordance with Section 2.6 of the Credit Agreementbeen satisfied.
Appears in 1 contract
Conditions to Increase. Unless otherwise terminated in accordance with Section 7 below prior to such time, the The effectiveness of each International Revolving Credit Commitment Increase shall become effective on the first date (the “First Increase Effective Date”) following the Agreement Effective Date on which each of the following conditions have been satisfied (or waived in accordance with Section 11.2 of the Credit Agreement), and the making of the First Increase Initial Term Loans on the First Increase Effective Date shall be subject solely to the satisfaction (or waiver in accordance with Section 11.2 of the Credit Agreement) of the following conditions on such date (it being agreed that the making of any Revolving Loans on the First Increase Effective Date, under the Increase or otherwise, shall be subject to the following conditions set forth in Section 3.2 that on and as of such International Revolving Credit Commitment Date, as applicable:
(i) No Default would occur or be continuing before or after giving effect to such International Revolving Credit Commitment Increase, as applicable.
(ii) Both before and after giving effect to the consummation of the International Revolving Credit Agreement):
(a) The Specified Representations Commitment Increase, as applicable, and the transactions related thereto, each of the representations and warranties contained in this Agreement and in the other International Loan Documents shall be true and correct in all material respects (or to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in all respects if qualified by materiality) immediately prior to, which case such representations and immediately after giving effect to, the initial borrowing of First Increase Initial Term Loans;
(b) The Acquisition warranties shall have been consummated substantially concurrently with the funding of the First Increase Initial Term Loans on the First Increase Effective Date in accordance with, true and correct in all material respectsrespects on and as of such earlier date (provided that if a representation and warranty is qualified as to materiality, the Acquisition Agreement and there shall not have been any amendment or waiver to the Acquisition Agreement by the Borrower or any of its Subsidiaries that is materially adverse to the Lenders unless consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that a reduction in the consideration payable under the Acquisition Agreement materiality qualifier set forth above shall be deemed not to be materially adverse to the Lenders so long as any such reduction in cash consideration shall be applied to reduce the aggregate amount of the Increase on a dollar-for-dollar basis, with such aggregate reduction to be applied on a pro rata basis among the Additional Lenders based on the aggregate respective amounts of the Increase to be provided by each such Lender as set forth Schedule I and further applied as to any Additional Lender to reduce its Increased Initial Term Loan Commitment (if any) and Increased Revolving Commitment (if any) on a pro rata basis;
(c) The Agent shall have received, from the Target and each of its subsidiaries, in each case that is a Material Subsidiary (other than any Excluded Subsidiary) (the “Target Entities”), the documentation required by Section 5.7 of the Credit Agreement; provided that, to the extent any security interest in any Collateral required to be provided by any Target Entity or in the equity interests of any Target Entity (other than any such Collateral (i) to the extent the security interest in which may be perfected by the filing of a UCC financing statement or intellectual property filings or (ii) if received from the Target at least two Business Days prior to Closing, consisting of certificated securities representing the equity interests in the Target and each of the Target’s Material Subsidiaries (other than any Excluded Assets (as defined in the Pledge and Security Agreement), in each case together with transfer powers executed in blank) is not or cannot be provided or perfected on the First Increase Effective Date after the Borrower’s use of commercially reasonable efforts to do so, the provision and/or perfection of such security interest(s) in such Collateral will not constitute a condition precedent to the effectiveness of the Increase but shall instead be required within the timeframe provided for in Section 5.7 of the Credit Agreement;
(d) The Agent shall have received a certificate of a duly authorized officer of the Borrower dated as of the Increase Effective Date certifying as to the satisfaction of the condition set forth in clause (a) above;
(e) The Agent shall have received the written opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as New York counsel to the Loan Parties and ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, as North Carolina counsel to Five Points Capital, Inc. (or in each case other counsel to the Loan Parties reasonably acceptable to the Agent) disregarded with respect to the Increase such representation and warranty for purposes of this Agreementcondition).
(iii) The Borrower shall make any payments required pursuant to Section 2.12 and Section 2.17(f) in connection with such International Revolving Credit Commitment Increase, as applicable.
(iv) The Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Administrative Agent in each caseconnection with any such transaction.
(v) An agreement, in form and substance reasonably satisfactory to the Administrative Agent;
(f) Each Lender shall have received, at least three (3) Business Days prior pursuant to the First which, effective as of such International Revolving Credit Commitment Increase Effective Date, all documentation and other information requested by it in writing to the Borrower at least 10 Business Days prior to the First Increase Effective Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsas applicable, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation;
(g) The Agent each Lender or International Revolving Assuming Lender, as applicable, shall provide its Commitment, or an increase of its Commitment, as applicable, shall be reasonably satisfied with the arrangements for the payment of all fees and (to the extent invoiced at least two (2) Business Days prior to the First Increase Effective Date) expenses required to be paid for the respective accounts of the Agentduly executed by each such lender, the Additional Lenders and JPMorgan Chase Bank, N.A. on the First Increase Effective Date as separately agreed between the Borrower and JPMorgan Chase Bankthe other International Loan Parties and delivered to the Administrative Agent (each, N.A. (it being understood that such fees and expenses may an “Increased Commitment Agreement”). Each Increased Commitment Agreement shall be netted out of subject to the initial funding of the Loans under the Increaserequirements set forth in Section 2.17(f); and.
(hvi) The A certificate of a Responsible Officer shall be delivered to the Administrative Agent shall stating that the conditions with respect to such International Revolving Credit Commitment Increase under this Section 2.19 have received a Request for Borrowing in accordance with Section 2.6 of the Credit Agreementbeen satisfied.
Appears in 1 contract
Conditions to Increase. Unless otherwise terminated in accordance with Section 7 below prior to such time, the Increase shall become effective on the first date (the “First Increase Effective Date”) following the Agreement Effective Date on which The effectiveness of each of the following conditions have been satisfied (or waived in accordance with Section 11.2 of the Credit Agreement), and the making of the First Increase Initial Term Loans on the First Increase Effective Date Incremental Revolving Loan Commitment shall be subject solely in the sole discretion of Lender (pursuant to the satisfaction (or waiver in accordance with Section 11.2 of the Credit Agreement4.7(c)) of the following conditions on such date (it being agreed that the making of any Revolving Loans on the First Increase Effective Date, under the Increase or otherwise, and shall be subject to the following conditions set forth in Section 3.2 that on and as of such Incremental Amount Date:
(i) No Default would occur or be continuing before or after giving effect to such Incremental Revolving Loan Commitment.
(ii) Both before and after giving effect to the consummation of the Credit Agreement):
(a) The Specified Representations Incremental Revolving Loans, and the transactions related thereto, each of the representations and warranties contained in this Agreement and the other Loan Documents shall be true and correct in all material respects (or to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in all respects if qualified by materiality) immediately prior to, which case such representations and immediately after giving effect to, the initial borrowing of First Increase Initial Term Loans;
(b) The Acquisition warranties shall have been consummated substantially concurrently with the funding of the First Increase Initial Term Loans on the First Increase Effective Date in accordance with, true and correct in all material respectsrespects on and as of such earlier date (provided that if a representation and warranty is qualified as to materiality, the Acquisition Agreement and there shall not have been any amendment or waiver to the Acquisition Agreement by the Borrower or any of its Subsidiaries that is materially adverse to the Lenders unless consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that a reduction in the consideration payable under the Acquisition Agreement materiality qualifier set forth above shall be deemed not to be materially adverse to the Lenders so long as any such reduction in cash consideration shall be applied to reduce the aggregate amount of the Increase on a dollar-for-dollar basis, with such aggregate reduction to be applied on a pro rata basis among the Additional Lenders based on the aggregate respective amounts of the Increase to be provided by each such Lender as set forth Schedule I and further applied as to any Additional Lender to reduce its Increased Initial Term Loan Commitment (if any) and Increased Revolving Commitment (if any) on a pro rata basis;
(c) The Agent shall have received, from the Target and each of its subsidiaries, in each case that is a Material Subsidiary (other than any Excluded Subsidiary) (the “Target Entities”), the documentation required by Section 5.7 of the Credit Agreement; provided that, to the extent any security interest in any Collateral required to be provided by any Target Entity or in the equity interests of any Target Entity (other than any such Collateral (i) to the extent the security interest in which may be perfected by the filing of a UCC financing statement or intellectual property filings or (ii) if received from the Target at least two Business Days prior to Closing, consisting of certificated securities representing the equity interests in the Target and each of the Target’s Material Subsidiaries (other than any Excluded Assets (as defined in the Pledge and Security Agreement), in each case together with transfer powers executed in blank) is not or cannot be provided or perfected on the First Increase Effective Date after the Borrower’s use of commercially reasonable efforts to do so, the provision and/or perfection of such security interest(s) in such Collateral will not constitute a condition precedent to the effectiveness of the Increase but shall instead be required within the timeframe provided for in Section 5.7 of the Credit Agreement;
(d) The Agent shall have received a certificate of a duly authorized officer of the Borrower dated as of the Increase Effective Date certifying as to the satisfaction of the condition set forth in clause (a) above;
(e) The Agent shall have received the written opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as New York counsel to the Loan Parties and ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, as North Carolina counsel to Five Points Capital, Inc. (or in each case other counsel to the Loan Parties reasonably acceptable to the Agent) disregarded with respect to the Increase such representation and warranty for purposes of this Agreement, condition).
(iii) The Borrower shall deliver or cause to be delivered any legal opinions or other documents reasonably requested by Lender in each caseconnection with any such transaction.
(iv) An agreement, in form and substance reasonably satisfactory to Lender, pursuant to which, effective as of such Incremental Amount Date, Lender shall provide its Incremental Revolving Loan Commitment, shall be duly executed by Lender and the Agent;Borrower (each, an “Increased Commitment Agreement”).
(fv) Each Lender shall have received, at least three (3) Business Days prior to the First Increase Effective Date, all documentation and other information requested by it in writing to the A certificate of a Responsible Office of Borrower at least 10 Business Days prior to the First Increase Effective Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation;
(g) The Agent shall be reasonably satisfied delivered to Lender stating that the conditions with the arrangements for the payment of all fees and (respect to the extent invoiced at least two (2such Incremental Revolving Loan Commitment under this Section 4.7(b) Business Days prior to the First Increase Effective Date) expenses required to be paid for the respective accounts of the Agent, the Additional Lenders and JPMorgan Chase Bank, N.A. on the First Increase Effective Date as separately agreed between the Borrower and JPMorgan Chase Bank, N.A. (it being understood that such fees and expenses may be netted out of the initial funding of the Loans under the Increase); and
(h) The Agent shall have received a Request for Borrowing in accordance with Section 2.6 of the Credit Agreementbeen satisfied.
Appears in 1 contract
Conditions to Increase. Unless otherwise terminated in accordance with Section 7 below prior to such time, the The effectiveness of each International Revolving Credit Commitment Increase shall become effective on the first date (the “First Increase Effective Date”) following the Agreement Effective Date on which each of the following conditions have been satisfied (or waived in accordance with Section 11.2 of the Credit Agreement), and the making of the First Increase Initial Term Loans on the First Increase Effective Date shall be subject solely to the satisfaction (or waiver in accordance with Section 11.2 of the Credit Agreement) of the following conditions on such date (it being agreed that the making of any Revolving Loans on the First Increase Effective Date, under the Increase or otherwise, shall be subject to the following conditions set forth in Section 3.2 that on and as of such International Revolving Credit Commitment Date, as applicable:
(i) No Default would occur or be continuing before or after giving effect to such International Revolving Credit Commitment Increase, as applicable.
(ii) Both before and after giving effect to the consummation of the International Revolving Credit Agreement):
(a) The Specified Representations Commitment Increase, as applicable, and the transactions related thereto, each of the representations and warranties contained in this Agreement and in the other International Loan Documents shall be true and correct in all material respects (or to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in all respects if qualified by materiality) immediately prior to, which case such representations and immediately after giving effect to, the initial borrowing of First Increase Initial Term Loans;
(b) The Acquisition warranties shall have been consummated substantially concurrently with the funding of the First Increase Initial Term Loans on the First Increase Effective Date in accordance with, true and correct in all material respectsrespects on and as of such earlier date (provided that if a representation and warranty is qualified as to materiality, the Acquisition Agreement materiality qualifier set forth above shall be disregarded with respect to such representation and there shall not have been any amendment or waiver to the Acquisition Agreement by the Borrower or any warranty for purposes of this condition).
(iii) The Parent and its Subsidiaries shall be in compliance for the most recently completed Test Period with the lesser of (x) the ratio required pursuant to Section 5.1 for the applicable period except that is materially adverse to the Lenders unless consented to by “Maximum Consolidated Net Leverage Ratio” shall be 0.25 less than the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that a reduction relevant figure set forth in the consideration payable under the Acquisition Agreement shall be deemed not table in such Section and (y) 2.65 to be materially adverse to the Lenders so long as any such reduction in cash consideration shall be applied to reduce the aggregate amount of the Increase on a dollar-for-dollar basis, with such aggregate reduction to be applied on a pro rata basis among the Additional Lenders based on the aggregate respective amounts of the Increase to be provided by each such Lender as set forth Schedule I and further applied as to any Additional Lender to reduce its Increased Initial Term Loan Commitment (if any) and Increased Revolving Commitment (if any) on a pro rata basis;
(c) The Agent shall have received, from the Target and each of its subsidiaries1.00, in each case that is on a Material Subsidiary (other than any Excluded Subsidiary) (the “Target Entities”), the documentation required by Section 5.7 of the Credit Agreement; provided that, pro forma basis after giving effect to the extent International Revolving Credit Commitment Increase and deeming, for purposes of such calculation, that the Borrower shall have borrowed in full the Loans made available pursuant to the International Revolving Credit Commitment Increase on such International Revolving Credit Commitment Increase Date, as applicable (whether or not such loans have in fact been borrowed on such date).
(iv) The Borrower shall make any security interest payments required pursuant to Section 2.12 and Section 2.17(f) in any Collateral required connection with such International Revolving Credit Commitment Increase, as applicable.
(v) The Borrower shall deliver or cause to be provided delivered any legal opinions or other documents reasonably requested by any Target Entity or Administrative Agent in the equity interests of any Target Entity (other than connection with any such Collateral (i) to the extent the security interest in which may be perfected by the filing of a UCC financing statement or intellectual property filings or (ii) if received from the Target at least two Business Days prior to Closing, consisting of certificated securities representing the equity interests in the Target and each of the Target’s Material Subsidiaries (other than any Excluded Assets (as defined in the Pledge and Security Agreement), in each case together with transfer powers executed in blank) is not or cannot be provided or perfected on the First Increase Effective Date after the Borrower’s use of commercially reasonable efforts to do so, the provision and/or perfection of such security interest(s) in such Collateral will not constitute a condition precedent to the effectiveness of the Increase but shall instead be required within the timeframe provided for in Section 5.7 of the Credit Agreement;transaction.
(dvi) The Agent shall have received a certificate of a duly authorized officer of the Borrower dated as of the Increase Effective Date certifying as to the satisfaction of the condition set forth in clause (a) above;
(e) The Agent shall have received the written opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as New York counsel to the Loan Parties and ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, as North Carolina counsel to Five Points Capital, Inc. (or in each case other counsel to the Loan Parties reasonably acceptable to the Agent) with respect to the Increase and this Agreement, in each caseAn agreement, in form and substance reasonably satisfactory to the Administrative Agent;
(f) Each Lender shall have received, at least three (3) Business Days prior pursuant to the First which, effective as of such International Revolving Credit Commitment Increase Effective Date, all documentation and other information requested by it in writing to the Borrower at least 10 Business Days prior to the First Increase Effective Date that is required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulationsas applicable, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation;
(g) The Agent each Lender or International Revolving Assuming Lender, as applicable, shall provide its Commitment, or an increase of its Commitment, as applicable, shall be reasonably satisfied with the arrangements for the payment of all fees and (to the extent invoiced at least two (2) Business Days prior to the First Increase Effective Date) expenses required to be paid for the respective accounts of the Agentduly executed by each such lender, the Additional Lenders and JPMorgan Chase Bank, N.A. on the First Increase Effective Date as separately agreed between the Borrower and JPMorgan Chase Bankthe other International Loan Parties and delivered to the Administrative Agent (each, N.A. (it being understood that such fees and expenses may an “Increased Commitment Agreement”). Each Increased Commitment Agreement shall be netted out of subject to the initial funding of the Loans under the Increaserequirements set forth in Section 2.17(f); and.
(hvii) The A certificate of a Responsible Officer shall be delivered to the Administrative Agent shall stating that the conditions with respect to such International Revolving Credit Commitment Increase under this Section 2.19 have received a Request for Borrowing in accordance with Section 2.6 of the Credit Agreementbeen satisfied.
Appears in 1 contract
Conditions to Increase. Unless otherwise terminated in accordance with Section 7 below prior to such time, the The effectiveness of each Incremental Term Loan Commitment and each U.S. Revolving Credit Commitment Increase shall become effective on the first date (the “First Increase Effective Date”) following the Agreement Effective Date on which each of the following conditions have been satisfied (or waived in accordance with Section 11.2 of the Credit Agreement), and the making of the First Increase Initial Term Loans on the First Increase Effective Date shall be subject solely to the satisfaction (or waiver in accordance with Section 11.2 of the Credit Agreement) of the following conditions on such date (it being agreed that the making of any Revolving Loans on the First Increase Effective Date, under the Increase or otherwise, shall be subject to the following conditions set forth in Section 3.2 that on and as of such Incremental Amount Date or U.S. Revolving Credit Commitment Date, as applicable:
(i) No Default would occur or be continuing before or after giving effect to such Incremental Term Loan Commitment or U.S. Revolving Credit Commitment Increase, as applicable.
(ii) Both before and after giving effect to the consummation of the Incremental Term Loans or the U.S. Revolving Credit Agreement):
(a) The Specified Representations Commitment Increase, as applicable, and the transactions related thereto, each of the representations and warranties contained in this Agreement and in the other U.S. Loan Documents shall be true and correct in all material respects (or to the same extent as though made on and as of that date, except to the extent such representations and warranties specifically relate to an earlier date, in all respects if qualified by materiality) immediately prior to, which case such representations and immediately after giving effect to, the initial borrowing of First Increase Initial Term Loans;
(b) The Acquisition warranties shall have been consummated substantially concurrently with the funding of the First Increase Initial Term Loans on the First Increase Effective Date in accordance with, true and correct in all material respectsrespects on and as of such earlier date (provided that if a representation and warranty is qualified as to materiality, the Acquisition Agreement and there shall not have been any amendment or waiver to the Acquisition Agreement by the Borrower or any of its Subsidiaries that is materially adverse to the Lenders unless consented to by the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), it being understood and agreed that a reduction in the consideration payable under the Acquisition Agreement materiality qualifier set forth above shall be deemed not disregarded with respect to be materially adverse such representation and warranty for purposes of this condition).
(iii) The Borrower shall make any payments required pursuant to the Lenders so long as any such reduction Section 2.12 and Section 2.17(f) in cash consideration shall be applied to reduce the aggregate amount of the Increase on a dollar-for-dollar basis, connection with such aggregate reduction to be applied on a pro rata basis among the Additional Lenders based on the aggregate respective amounts of the Increase to be provided by each such Lender as set forth Schedule I and further applied as to any Additional Lender to reduce its Increased Initial Incremental Term Loan Commitment (if any) and Increased or U.S. Revolving Credit Commitment (if any) on a pro rata basis;Increase, as applicable.
(civ) The Agent Borrower shall have received, from the Target and each of its subsidiaries, in each case that is a Material Subsidiary (other than any Excluded Subsidiary) (the “Target Entities”), the documentation required by Section 5.7 of the Credit Agreement; provided that, to the extent any security interest in any Collateral required deliver or cause to be provided delivered any legal opinions or other documents reasonably requested by any Target Entity or Administrative Agent in the equity interests of any Target Entity (other than connection with any such Collateral (i) to the extent the security interest in which may be perfected by the filing of a UCC financing statement or intellectual property filings or (ii) if received from the Target at least two Business Days prior to Closing, consisting of certificated securities representing the equity interests in the Target and each of the Target’s Material Subsidiaries (other than any Excluded Assets (as defined in the Pledge and Security Agreement), in each case together with transfer powers executed in blank) is not or cannot be provided or perfected on the First Increase Effective Date after the Borrower’s use of commercially reasonable efforts to do so, the provision and/or perfection of such security interest(s) in such Collateral will not constitute a condition precedent to the effectiveness of the Increase but shall instead be required within the timeframe provided for in Section 5.7 of the Credit Agreement;transaction.
(dv) The Agent shall have received a certificate of a duly authorized officer of the Borrower dated as of the Increase Effective Date certifying as to the satisfaction of the condition set forth in clause (a) above;
(e) The Agent shall have received the written opinion of each of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, as New York counsel to the Loan Parties and ▇▇▇▇▇▇ Bond ▇▇▇▇▇▇▇▇▇ (US) LLP, as North Carolina counsel to Five Points Capital, Inc. (or in each case other counsel to the Loan Parties reasonably acceptable to the Agent) with respect to the Increase and this Agreement, in each caseAn agreement, in form and substance reasonably satisfactory to the Administrative Agent;
(f) Each Lender shall have received, at least three (3) Business Days prior pursuant to the First which, effective as of such Incremental Amount Date or U.S. Revolving Credit Commitment Increase Effective Date, all documentation and other information requested by it in writing to the Borrower at least 10 Business Days prior to the First Increase Effective Date that is required by regulatory authorities under as applicable, each Incremental Term Loan Lender, U.S. Revolving Increasing Lender or U.S. Revolving Assuming Lender, as applicable, shall provide its Incremental Term Loan Commitment, U.S. Revolving Credit Commitment, or an increase of its applicable “know your customer” and anti-money laundering rules and regulationsU.S. Revolving Credit Commitment, including without limitation the USA Patriot Act and the Beneficial Ownership Regulation;
(g) The Agent as applicable, shall be reasonably satisfied with the arrangements for the payment of all fees and (to the extent invoiced at least two (2) Business Days prior to the First Increase Effective Date) expenses required to be paid for the respective accounts of the Agentduly executed by each such lender, the Additional Lenders and JPMorgan Chase Bank, N.A. on the First Increase Effective Date as separately agreed between the Borrower and JPMorgan Chase Bankthe other U.S. Loan Parties and delivered to the Administrative Agent (each, N.A. (it being understood that such fees and expenses may an “Increased Commitment Agreement”). Each Increased Commitment Agreement shall be netted out of subject to the initial funding of the Loans under the Increaserequirements set forth in Section 2.17(f); and.
(hvi) The A certificate of a Responsible Officer shall be delivered to the Administrative Agent shall stating that the conditions with respect to such Incremental Term Loan Commitment or U.S. Revolving Credit Commitment Increase, as applicable, under this Section 2.19 have received a Request for Borrowing in accordance with Section 2.6 of the Credit Agreementbeen satisfied.
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